State of California (Department of Personnel Administration) (PERB 2102S)

STATE OF CALIFORNIA	STATE OF CALIFORNIA
DECISION OF THE	DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD	PUBLIC EMPLOYMENT RELA..TIONS BOARD
CALIFORNIA	CALIFORNIA CORRECTIONAL PEACE	CORRECTIONAL PEACE
OFFICERS ASSOCIATION,	OFFICERS ASSOCIATION,
Charging Party,	Charging Party,
v.	
V.
STATE OF CALIFORNIA (DEPARTMENT OF	STATE OF CALIFORNIA (DEPARTMENT OF
PERSONNEL ADMINISTRATION),	PERSONNEL ADMINISTRATION),
Respondent.	Respondent.
Case No. SA-CE-1665-S	Case No. SA-CE-1665-S
PERB Decision No. 2102-S	PERB Decision No. 2102-S
March 26, 2010	March 26, 2010
Appearances:	Appearances: Carroll, Burdick & McDonough by Gregg Mclean Adam and Jonathan Yank,	Carroll, Burdick & McDonough by Gregg McLean Adam and Jonathan Yan
Attorneys,	Attorneys, for California Correctional Peace Officers Association; Kronick, Moskovitz,	for California Correctional Peace Officers Association; Kronick, Moskovitz,
Tiedemann & Girard by David W. Tyra, Attorney, and Paul M. Starkey, Assistant Chief	Tiedemann & Girard by David
W.
Tyra, Attorney, and Paul M. Starkey, Assistant Chief
Counsel,	Counsel, for State of California (Department of Personnel Administration).	for State
of
California (Department
of
Personnel Administration).
Before	Before Dowdin Calvillo, Acting Chair; Mckeag and Wesley, Members.	Dowdin Calvillo, Acting Chair; McKeag and Wesley, Members.
DECISION	DECISION
DOWDIN CALVILLO, Acting Chair: This case is before the Public Employment	DOWDIN CALVILLO, Acting Chair: This case is before the Public Employment
Relations Board	Relations Board (PERB or Board) on exceptions filed by the California Correctional Peace	(PERB or Board) on exceptions filed by the California Correctional Peace
Officers Association (CCPOA) to the proposed decision (attached) of an administrative law	Officers Association (CCPOA) to the proposed decision (attached)
of
an administrative law
judge (ALJ). The complaint alleged that the State of California (Department of Personnel	judge (ALJ). The complaint alleged that the State
of
California (Department
of
Personnel
Administration) (DPA) violated	Administration) (DPA) violated the Ralph C. Dills Act (Dills Act)' by refusing CCPOA's	the Ralph
C.
Dills Act (Dills Act) 1 by refusing CCPOA's
requests to resume bargaining over a	requests to resume bargaining over a successor memorandum of understanding following	successor memorandum
of
understanding following
DP A's post-impasse impiementation of its last,	DPA's post-impasse implementation of its last, best and final offer. The ALJ dismissed the	best and final offer. The ALJ dismissed the
complaint	complaint on the ground that DPA had no duty to bargain with CCPOA because the parties'	on the ground that DPA had no duty to bargain with CCPOA because the parties'
bargaining impasse had not	bargaining impasse had not been broken by "changed circumstances" at the time the	been broken by "changed circumstances" at the time the
bargaining requests were made.	bargaining requests were made.
1
The Dills Act is codified at Government Code section 3512 et seq.	The Dills Act is codified at Government Code section 3512 et seq.

2
of	The Board has reviewed the proposed decision and the record in light of CCPOA's	The Board has reviewed the proposed decision and the record in light 	CCPO
A's
exceptions, DP
A's
response to the exceptions, and the relevant law. Based on this review, we	exceptions, DPA's response to the exceptions, and the relevant law. Based on this review, we
find the proposed decision to be well-reasoned, adequately supported by the record and in	find the proposed decision to be well-reasoned, adequately supported by the record and in
accordance with applicable law. Accordingly, the Board adopts the proposed decision as the	accordance with applicable law. Accordingly, the Board adopts the proposed decision as the
decision
of
the Board itself. 2
decision of the Board itself.
ORDER	ORDER
The complaint and underlying unfair practice charge in Case No. SA-CE-1665-S ar	The complaint and underlying unfair practice charge in Case No. SA-CE-1665-S are
hereby DISMISSED.	hereby DISMISSED.
Members Mckeag and Wesley joined in this Decision.	Members McKeag and Wesley joined in this Decision.
e
2 CCPOA requested oral argument in this matter. Historically, the Board has denied	CCPOA requested oral argument in this matter. Historically, the Board has denied
requests for oral argument when an adequate record has been prepared, the parties had ample	requests for oral argument when an adequate record has been prepared, the parties had ample
opportunity to present briefs and have availed themselves of that opportunity, and the issues	opportunity to present briefs and have availed themselves of that opportunity, and the issues
before the Board are sufficiently clear to make oral argument unnecessary. (United Teachers	before the Board are sufficiently clear to make oral argument unnecessary. (United Teachers
of
Los Angeles (Valadez, et al.) (2001) PERB Decision No. 1453; Monterey County Office
of	of Los Angeles (Valadez, et al.) (2001) PERB Decision No. 1453; Monterey County Office of
Education (1991) PERB Decision No. 913.) Based on our review of the record, all of the	Education (1991) PERB Decision No. 913.) Based on our review of the record, all of the
above criteria are met in this case. Therefore, CCPOA's request for oral argument is denied.	above criteria are met in this case. Therefore, CCPOA's request for oral argument is denied.
2

STATE OF CALIFORNIA	STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD	PUBLIC EMPLOYMENT RELATIONS BOARD
CALIFORNIA CORRECTIONAL PEACE	CALIFORNIA CORRECTIONAL PEACE
OFFICERS ASSOCIATION,	OFFICERS ASSOCIATION,
Charging Party,	Charging Party,
v
V..
STATE OF CALIFORNIA (DEPARTMENT OF	STATE OF CALIFORNIA (DEPARTMENT OF
PERSONNEL ADMINISTRATION),	PERSONNEL ADMINISTRATION),
Respondent.	Respondent.
UNFAIR PRACTICE	UNFAIR PRACTICE
CASE NO. SA-CE-1665-S	CASE NO. SA-CE-1665-S
PROPOSED DECISION	PROPOSED DECISION
(August 19, 2009)	(August 19, 2009)
Appearances	Appearances:: Carroll, Burdick & McDonough, by Gregg Mclean Adam and Jonathan Yank,	Carroll, Burdick & McDonough, by Gregg McLean Adam and Jonathan Yank,
Attorneys, for California Correctional Peace Officers Association; Kronick Moscovitz	California Correctional Peace Officers Association; Kronick Moscovitz
Tiedermann & Girard, by David W. Tyra, Attorney and Department of Personnel	Tiedermann & Girard, by David W. Tyra, Attorney and Department
of
Personnel
Administration by Paul M. Starkey, Assistant Chief Counsel, for State of California	Administration by Paul M. Starkey, Assistant Chief Counsel, for State
of
California
(Dep::irtmPnt	Department of Personnel Administration).	
of
PPrc:onnPl Aciminic:tr::ition).
Attorneys, for
Before Bernard McMonigle, Chief Administrative Law Judge.	Before Bernard McMonigle, Chief Administrative Law Judge.
PROCEDURAL HISTORY	PROCEDURAL HISTORY
t
In this matter, a union alleges that after impasse and implementation
of
a	In this matter, a union alleges that after impasse and implementation of a last, best, and	last, best, and
final offer, the	final offer, the employer improperly refused to return to the bargaining table.	employer improperly refused to return to the bargaining table.
On March 11, 2008, the California	On March 11, 2008, the California Correctional Peace Officers Association (CCPOA or	Correctional Peace Officers Association (CCPOA or
Association) filed an unfair practice charge against the State of California (Department of	Association) filed an unfair practice charge against the State
of
California (Department
of
Personnel	Personnel Administration) (DPA). On April 16, 2008, the Office of the General Counsel for	Administration) (DPA). 	On April 16, 2008, the Office
of
the General Counsel for
the Public Employment	he Public Employment Relations Board (PERB or Board) issued a complaint alleging that	Relations Board (PERB or Board) issued a complaint alleging that
DPA had violated section 3519(c), (a) and (b) of the Ralph 1
DPA had violated section 3519(c), (a) and (b) of the Ralph C. Dills Act (Dills Act or Act)	
C. Dills Act (Dills Act or Act)
when it refused on January 30, and March 5, to resume bargaining after written CCPOA	when it refused on January 30, and March 5, to resume bargaining after written CCPOA
1
The Dills Act is codified at Government Code section 3512 et seq.	The Dills Act is codified at Government Code section 3512 et seq.

2
requests
of
December 27, 2007, and January 16, February 22, and 29, 2008, that cited	requests of December 27, 2007, and January 16, February 22, and 29, 2008, that cited
*changed circumstances."2	"changed circumstances. "2
denying	On May 9, 2008, DPA answered the complaint, denying any violation of the Dills Act	On May
9,
2008, DPA answered the complaint, 	any violation
of
the Dills Act
and asserting affirmative defenses.	and asserting affirmative defenses.
A PERB board agent conducted an informal settlement conference on May 9, 2008, but	
A PERB board agent conducted an informal settlement conference on May 9, 2008, but
no agreement was reached.	no agreement was reached.
An effort was made by the parties to stipulate to the facts in this matter, so a formalAn effort was made by the parties to stipulate to the facts in this matter, so a formal
hearing would not be necessary. The undersigned determined that there was insufficient	hearing would not be necessary. The undersigned determined that there was insufficient
agreement on the relevant facts, and a formal hearing was required to develop a record	agreement on the relevant facts, and a formal hearing was required to develop a record
sufficient to decide the matter. The formal hearing was held on January 12 and 13, 2009.sufficient to decide the matter. The formal hearing was held on January 12 and 13, 2009.
With receipt of briefs on March 23, 2009, this case was submitted for decision.	With receipt
of
briefs on March 23, 2009, this case was submitted for decision.
FINDINGS OF FACT	FINDINGS OF FACT
Charging Party CCPOA is a recognized employee organization within the meaning
ofCharging Party CCPOA is a recognized employee organization within the meaning of
section 3513(b), and the exclusive representative for statewide bargaining unit
6.
	Respondent
section 3513(b), and the exclusive representative for statewide bargaining unit 6. Respondent
DPA is the State employer within the meaning of section 3513(j).	DPA is the State employer within the meaning
of
section
35
l 3(j).
On July 2, 2006, the most recent memorandum
of
understanding (MOU) between theOn July 2, 2006, the most recent memorandum of understanding (MOU) between the
parties expired. They initiated negotiations for a successor agreement on June 9.	parties expired. They initiated negotiations for a successor agreement on June 9.
On September 12, 2007, after
18
months
of
unsuccessful negotiations that included
On September 12, 2007, after 18 months of unsuccessful negotiations that included
mediation, DP A made a "last, best, and final" offer (LBFO) for a three year agreement. 	Thatmediation, DPA made a "last, best, and final" offer (LBFO) for a three year agreement. That
package proposal was rejected by CCPOA, and implemented by DPA, on September 17, 2007.
package proposal was rejected by CCPOA, and implemented by DPA, on September 17, 2007.
The LBFO included certain increases in pay and benefits which required, but has not	The LBFO included certain increases in pay and benefits which required, but has not
received approval by the Legislature.	received approval by the Legislature.
2
CCPOA also filed a request for injunctionelief that was denied by the Board on	CCPOA also filed a request for injunctive relief that was denied by the Board on
March 18, 2008.	March 18, 2008.
2

3
On December 13, 2007, after issuance
of
a PERB	On December 13, 2007, after issuance of a PERB complaint in PERB Case No.	complaint in PERB Case No.
SA-CE-1621-S, DPA withdrew implementation	SA-CE-1621-S, DPA withdrew implementation of the second and third year of the LBFO. On	
of
the second and third year
of
the LBFO. 3 On
December 27, 2007, CCPOA Executive Vice President Chuck Alexander sent a letter to DPA	December 27, 2007, CCPOA Executive Vice President Chuck Alexander sent a letter
to DPA
Director David Gilb. Alexander cited Government Code section 3517.8(b) which states:	Director David Gilb. Alexander cited Government Code section 3517.8(b) which states:
If the Governor and the recognized employee organization reach	
If
the Governor and the recognized employee organization reach
an impasse in negotiations for a new memorandum of	an impasse in negotiations for a new memorandum
of
understanding, the state employer may	understanding, the state employer may implement any or all of its	implement any or all
of
its
last, best, and final offer. Any proposal in the state employer's	last, best, and final offer. Any proposal in the state employer's
last, best, and final offer that, if implemented, would conflict with	last, best, and final offer that,
if
implemented, would conflict with
existing	existing statutes or require the expenditure of funds shall be	statutes or require the expenditure
of
funds shall be
presented to the Legislature for approval and,
if
approved, shall	presented to the Legislature for approval and, if approved, shall
be controlling without further legislative action, notwithstanding	be controlling without further legislative action, notwithstanding
Sections 3517.5, 3517.6, and 3517.7. Implementation of the last.	Sections 3517.5, 3517.6, and 3517.7. Implementation
of
the last,
best, and final offer does not relieve the parties of the obligation	best, and final offer does not relieve the parties
of
the obligation
to bargain in good faith and reach an agreement on a	to bargain in good faith and reach an agreement on a
memorandum of understanding if circumstances change, and does	memorandum
of
understanding
if
circumstances change, and does
not waive rights that the recognized employee organization has	not waive rights that the recognized employee organization has
under this chapter.	under this chapter. (Emphasis added.)	(Emphasis added.)
The letter stated that issuance of the PERB complaint constituted:	The letter stated that issuance
of
the PERB complaint constituted:
"a change in circumstances under section 3517.8. Accordingly,	
"a change in circumstances under section 3517.8. Accordingly,
CCPOA demands that DPA immediately return to negotiations."	CCPOA demands that DPA immediately return to negotiations."
Alexander	Alexander also stated that a return to good faith negotiations required DPA to rescind	also stated that a return to good faith negotiations required DPA to rescind
the LBFO and restore the status quo as it existed prior to implementation.	
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DP A Labor Relations Counsel Paul Starkey	DPA Labor Relations Counsel Paul Starkey requested a clarification of the bargaining	requested a clarification
of
the bargaining
request and the CCPOA assertion that changed circumstances required a return to negotiations.	request and the CCPOA assertion that changed circumstances required a return to negotiations.
On January 10, 2008, the Governor issued a Fiscal Emergency Proclamation regarding	On January 10, 2008, the Governor issued a Fiscal Emergency Proclamation regarding
insufficient revenues to fund the	insufficient revenues to fund the Fiscal Year 2007-2008 Budget Act. Shortly thereafter,	Fiscal Year 2007-2008 Budget Act. 	Shortly thereafter,
California Department
of	California Department of Corrections and Rehabilitation (CDCR) Secretary James Tilton	Corrections and Rehabilitation (CDCR) Secretary James Tilton
issued a press release	issued a press release announcing an agency budget cut of ten percent.	announcing an agency budget cut
of
ten percent.
3
That case is scheduled for a PERB formal hearing in October 2009.	That case is scheduled for a PERB formal hearing in October 2009.
3

On January 16, 2008, CCPOA Staff Legal Counsel Suzanne Branine (Branine)	On January 16, 2008, CCPOA Staff Legal Counsel Suzanne Branine (Branine)
responded by letter to Starkey. Branine	responded by letter to Starkey. Branine stated that the changed circumstances requiring	stated that the changed circumstances requiring
additional bargaining	additional bargaining included the issuance of the PERB complaint, DPA's withdrawal of	included the issuance
of
the PERB complaint, DPA's withdrawal
of
implementation of the second and third year of the LBFO and the announced budget crisis	implementation
of
the second and third year
of
the LBFO and the announced budget crisis
which "will impact the likelihood that the State can carry out any portion of its one year	which "will impact the likelihood that the State can carry out any portion
of
its one year
economic	economic LBFO." Branine added, "CCPOA reiterates its demand that, prior to	LBFO." Branine added, "CCPOA reiterates its demand that, prior to
commencement of negotiations, DPA return conditions to those in existence prior to	commencement
of
negotiations, DP A return conditions to those in existence prior to
September 18,	September 18, 2007." She also inquired as to what terms the state would require to bargain if	2007." She also inquired as to what terms the state would require to bargain
if
CCPOA's	CCPOA's were not acceptable.	were not acceptable.
By letter of January 30, 2008, Starkey denied the request to bargain contending that	By letter
of
January 30, 2008, Starkey denied the request to bargain contending that
there had been no change in circumstances that would revive the obligation to bargain. He	there had been no change in circumstances that would revive the obligation to bargain. 	He
interpreted the Dills Act to require a return to negotiations only when a change in	interpreted the Dills Act to require a return to negotiations only when a change in
circumstances	circumstances created the possibility of fruitful discussions. He also denied the bargaining	created the possibility
of
fruitful discussions. He also denied the bargaining
request because it was conditioned upon reinstatement of the expired terms of the MOU.	request because it was conditioned upon reinstatement
of
the expired terms
of
the MOU.
On	On February 7, 2008, CCPOA State President Mike Jimenez (Jiminez) wrote to DPA	February 7, 2008, CCPOA State President Mike Jimenez (Jiminez) wrote to DPA
..&....,,	
n,rector	
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	.l.
Dau1rl	
V
.l.'-1- n,lh	
'-JJ..l.L/
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that theDirector David Gilb (Gilb) informing him that the CCPOA Executive Council would be	
I,,
J.J..	
rrPn	
'-'"'-'".l.
'-./.i.
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Pxe"Ut''V"'	
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considering a strike that could be	considering a strike that could be averted "by your immediate return to meaningful and	averted "by your immediate return to meaningful and
unconditional negotiations,	unconditional negotiations, including the removal of the 'all or nothing' package deal	including the removal
of
the 'all or nothing' package deal
requirement." Gilb responded on	requirement." Gilb responded on February 15, contending that any job action would be illegal,	February 15, contending that any job action would be illegal,
the parties remained
at	the parties remained at impasse, and CCPOA's offers to return to bargaining were conditioned	impasse, and
CCPO"Ai..'s
offers to return to bargaining ,vere conditioned
on a return to the	on a return to the pre-implementation status quo. He denied Jimenez's request to return to	pre-implementation status quo. He denied Jimenez's request to return to
bargaining.	bargaining.
On February 22, 2008, Alexander wrote to Gilb stating, "we don't necessarily agree	On February 22, 2008, Alexander wrote to Gilb stating, "we don't necessarily agree
with your characterization of our	with your characterization of our relative positions." He quoted from Branine's letter of	relative positions." He quoted from Branine's letter of
4

January 16, "[i]f the State is not prepared to return to the bargaining table based on terms	January 16, "[ilf the State is not prepared to return to the bargaining table based on terms
outlined above, please advise me under what terms, if any, the State is prepared to return to the	outlined above, please advise me under what terms, if any, the State is prepared to return to the
bargaining table."	bargaining table."
On February 29, 2008, attorney Gregg Mclean Adam (Mclean Adam) wrote to Gilb	On February 29, 2008, attorney Gregg McLean Adam (McLean Adam) wrote to Gilb
on behalf of CCPOA. He asserted that since implementation of the LBFO in September 2007,	on behalf of CCPOA. He asserted that since implementation of the LBFO in September 2007,
the	the PERB complaint, DPA's rescission of years two and three of the implementation, the	PERB complaint, DPA's rescission of years two and three of the implementation, the
Governor's declaration of a fiscal state of emergency, and the lack of legislative approval of	Governor's declaration of a fiscal state of emergency, and the lack of legislative approval of
the pay increase constituted changed circumstances requiring DP A's return to bargaining.	the pay increase constituted changed circumstances requiring DPA's return to bargaining.
On March 5, 2008, DP A Deputy Director Julie Chapman (Chapman) wrote to McLean	On March 5, 2008, DPA Deputy Director Julie Chapman (Chapman) wrote to Mclean
Adam rejecting his bargaining demand. Chapman stated:	Adam rejecting his bargaining demand. Chapman stated:
A thorough review of such correspondence [letters above] leads	A thorough review of such correspondence [letters above] leads
to the conclusion that the State declined returning to the	to the conclusion that the State declined returning to the
bargaining	bargaining table because the parties remain at impasse and your	table because the parties remain at impasse and your
client,	client, CCPOA, has placed conditions upon the parties return to	CCPOA, has placed conditions upon the parties return to
the table. Specifically, CCPOA, on numerous occasions, has	the table. 	Specifically, CCPOA, on numerous occasions, has
conditioned its return to the negotiating table on reviving the	conditioned its return to the negotiating table on reviving the
terms and conditions of the expired MOU and rolling back the	terms and conditions of the expired MOU and rolling back the
State's implementation of its LBFO. The State remains unwilling	State's implementation of its LBFO. The State remains unwilling
to return to the table subject to such conditions.	to return to the table subject to such conditions.
(Emphasis in original.)	(Emphasis in original.)
Chapman also wrote that DPA has seen no change in CCPOA's bargaining position and	Chapman also wrote that DPA has seen no change in CCPOA's bargaining position and
disagreed with McLean Adam that the "items alleged by CCPOA constitute changed	disagreed with McLean Adam that the "items alleged by CCPOA constitute changed
circumstances" that required a return to negotiations.4
circumstances" that required a return to negotiations.*
*Testimony at the hearing established that after March 5, 2008, the timeframe at issue	Testimony at the hearing established that after March 5, 2008, the timeframe at issue
in this case, the parties continued discussions regarding the possibility of negotiations.	in this case, the parties continued discussions regarding the possibility of negotiations.
Exhibits demonstrate that those discussions were unsuccessful at least through June 2, 2008.	Exhibits demonstrate that those discussions were unsuccessful at least through June 2, 2008.
55

ISSUE	ISSUE
Did DPA violate the Dills Act by refusing, from December 27, 2007 through March 5,	Did DPA violate the Dills Act by refusing, from December 27, 2007 through March 5,
2008, CCPOA's requests to return to negotiations over a successor memorandum of	2008, CCPOA's requests to return to negotiations over a successor memorandum of
understanding?	understanding?
CONCLUSIONS OF LAW	CONCLUSIONS OF LAW
6
It is well settled, in the private and public sectors, that once a legitimate impasse is	It is well settled, in the private and public sectors, that once a legitimate impasse is
reached in collective bargaining, an employer may implement changes that were contained inreached in collective bargaining, an employer may implement changes that were contained in
its "last, best and final offer."	its "last, best and final offer." (Public Employment Relations Bd. v. Modesto City Schools	(Public Employment Relations Bd. v. Modesto City Schools
Dist. (1982) 136 Cal.App.3d 881;	Dist. (1982) 136 Cal.App.3d 881; Charter Oak Unified School District (1991) PERB Decision	Charter Oak Unified School District (1991) PERB Decisio
No. 873; cf. NLRB v. Katz, (1962) 369 U.S. 736.)	No. 873; cf. NLRB v. Katz, (1962) 369 U.S. 736.)
However, an impasse does not terminate an employer's duty to bargain. Rather, the	However, an impasse does not terminate an employer's duty to bargain. Rather, the
obligation to bargain is suspended only until changed circumstances indicate that attempt to	obligation to bargain is suspended only until changed circumstances indicate that attempt to
reach agreement is no longer futile. 	(Modesto City Schools (1983) PERB Decision No. 291;reach agreement is no longer futile. (Modesto City Schools (1983) PERB Decision No. 291;
Hi-Way Billboards, Inc. (1973) 206 NLRB 22.)	Hi-Way Billboards, Inc. (1973) 206 NLRB 22.)
The Board summarized an employer's obligation to return to negotiations in Rowland	The Board summarized an employer's obligation to return to negotiations in Rowland
Unified School District (1994) PERB Decision No. 1053 (Rowland USD):
Once impasse is reached either party may refuse to negotiate	Once impasse is reached either party may refuse to negotiate
further and the employer is free to implement changes reasonably	further and the employer is free to implement changes reasonably
comprehended within its last, best and final offer. However,	comprehended within its last, best and final offer. However,
impasse suspends the parties' obligation to bargain only until	impasse suspends the parties' obligation to bargain only until
changed circumstances indicate that an agreement may be	changed circumstances indicate that an agreement may be
possible. (Modesto; Hi-Way Billboards, Inc. (1973) 206 NLRB	possible. (Modesto; Hi-Way Billboards, Inc. (1973) 206 NLRB
22; Providence Medical Center (1979) 243 NLRB 714.)	22; Providence Medical Center (1979) 243 NLRB 714.)
Unified School District (1994) PERB Decision No. 1053 (Rowland USD):
. . .
The [employer's] duty to resume negotiations following good	The [employer's] duty to resume negotiations following good
faith completion of impasse arises only if the [union's] proposals	faith completion of impasse arises only if the [union's] proposals
contained a concession from its earlier position which	contained a concession from its earlier position which
demonstrates that circumstances have changed and agreement	demonstrates that circumstances have changed and agreement
may be possible.	may be possible.
(Emphasis added.)	(Emphasis added.)
n
6

the Association might find desirable, in exchange for the sought after management reforms.
7
Additionally, "it is incumbent on the party asserting that the impasse has been	Additionally, "it is incumbent on the party asserting that the impasse has been broken to	
broken
to
point to the changed circumstances" that suggests future bargaining might produce positive	point to the changed circumstances" that suggests future bargaining might produce positive
results. (Serramonte Oldsmobile, Inc.
v.
NLRB (1996) 86	results. (Serramonte Oldsmobile, Inc. v. NLRB (1996) 86 F.3d 227, 233.) Here, CCPOA	F.3d 227, 233.) Here, CCPOA
contends that three events necessarily presented changed	contends that three events necessarily presented changed circumstances that broke the impasse	circumstances that broke the impasse
and required the parties to return to the bargaining table.	and required the parties to return to the bargaining table.
The first event is DP
A's	The first event is DPA's failure to secure legislative approval of the financial terms of	failure to secure legislative approval
of
the financial terms
of
the LBFO, including a five percent pay	the LBFO, including a five percent pay increase and improved health benefits that were offered	increase and improved health benefits that were offered
in exchange for certain management reforms the employer sought. With its brief, CCPOA	in exchange for certain management reforms the employer sought. With its brief, CCPOA
argues, "[t]his dramatically changes the bargaining-related circumstances, as it	argues, "[this dramatically changes the bargaining-related circumstances, as it requires both	requires both
parties to engage in a comprehensive reprioritization
of
bargaining concerns and expectations."	parties to engage in a comprehensive reprioritization of bargaining concerns and expectations."
CCPOA speculates that DPA would now make different concessions than a pay increase that	CCPOA speculates that DPA would now make different concessions than a pay increase that
the Association might find desirable, in exchange for the sought after management reforms.
Next,	Next, CCPOA contends that the Governor's declaration of a fiscal emergency	CCPOA contends that the Governor's declaration
of
a fiscal emergency
combined with the	combined with the CDCR announcement of a ten percent spending reduction sufficiently	CDCR announcement
of
a ten percent spending reduction sufficiently
changed	changed bargaining-related circumstances. The Association relies on Kit Manufacturing Co.,	bargaining-related circumstances. The Association relies on Kit Manufacturing Co.,
Inc. and Sheet Metal Workers Int'l Assn., Local 213, AFL-CIO (1962) 138 NLRB 1290 (Kit).	
Inc. and Sheet Metal Workers Int'! Assn., Local 213, AFL-CIO (1962) 138 NLRB 1290 (Kit).
In that	In that case, a union asked whether the employer's LBFO remained a valid offer, the employer	case, a union asked whether the employer's LBFO remained a valid offer, the employer
said it was not and refused additional bargaining. Finding that the employer had violated its	said it was not and refused additional bargaining. Finding that the employer had violated its
duty	duty to bargain, the National Labor Relations Board (NLRB) noted that changed circumstances	to bargain, the National Labor Relations Board (NLRB) noted that changed circumstances
included the employer's improved financial status. According to CCPOA, the State's changed	included the employer's improved financial status. According to CCPOA, the State's changed
financial condition here similarly requires a return to bargaining.	financial condition here similarly requires a return to bargaining.
The last event relied on by the Association involves the	The last event relied on by the Association involves the issuance of a complaint on	issuance of a complaint on
December 7, 2007,	December 7, 2007, by the PERB General Counsel. The complaint alleged that, by	by the PERB General Counsel. The complaint alleged that, by
implementing economic terms for a three-year implementation, DP A violated its obligation to	implementing economic terms for a three-year implementation, DPA violated its obligation to
7

bargain. On December 13, 2007, DPA withdrew the implementation of the LBFO years two	bargain. On December 13, 2007, DPA withdrew the implementation of the LBFO years two
and three. CCPOA contends that this action constituted a DPA bargaining concession, thus	and three. CCPOA contends that this action constituted a DP A bargaining concession, thus
breaking impasse and creating a new possibility for fruitful discussion.	breaking impasse and creating a new possibility for fruitful discussion.
The record here does not demonstrate that the mere occurrence of these events led	The record here does not demonstrate that the mere occurrence of these events led
either party to indicate "a concession from its earlier bargaining position," the changed	either party to indicate "a concession from its earlier bargaining position," the changed
circumstances required by the Board in Rowland USD, supra, PERB Decision No. 1053.	circumstances required by the Board in Rowland USD, supra, PERB Decision No. 1053.
The	The Association merely speculates that DPA might want to change its bargaining	Association merely speculates that DPA might want to change its bargaining
position after failure to secure legislative passage of the LBFO financial terms. As case law	position after failure to secure legislative passage of the LBFO financial terms. As case law
demonstrates, mere speculation regarding possible concessions by the other party is	demonstrates, mere speculation regarding possible concessions by the other party is
insufficient to revive bargaining. There must be substantial evidence that a party is committed	insufficient to revive bargaining. There must be substantial evidence that a party is committed
to a new bargaining position. (Serramonte Oldsmobile, Inc. v. NLRB, supra, 86 F.3d 227,	to a new bargaining position. (Serramonte Oldsmobile, Inc. v. NLRB, supra, 86 F.3d 227,
233.) In addition, the incentive for DPA to change its position to gain agreement on	233.) 	In addition, the incentive for DP A to change its position to gain agreement on
management reforms is not clear, as the management reforms of the LBFO were already in	management reforms is not clear, as the management reforms of the LBFO were already in
effect.	effect.
Nor is it clear how the State's deteriorating finances necessarily creates a possibility of	Nor is it clear how the State's deteriorating finances necessarily creates a possibility of
fruitful discussions. The contention that worsening employer finances would have the same	fruitful discussions. The contention that worsening employer finances would have the same
positive bargaining impact as improving finances finds no support in Kit, supra, 138 NLRB	positive bargaining impact as improving finances finds no support in Kit, supra, 138 NLRB
1290. 	In that case, the NLRB did find that improved finances were changed circumstance that	1290. In that case, the NLRB did find that improved finances were changed circumstance that
could lead to a greater wage offer. However, the union had expressed a change in position by	could lead to a greater wage offer. However, the union had expressed a change in position by
inquiring whether the LBFO was still a valid contract offer. Here, the record does not	inquiring whether the LBFO was still a valid contract offer. Here, the record does not
demonstrate that deteriorating finances led to a possible bargaining concession by either party.	demonstrate that deteriorating finances led to a possible bargaining concession by either party.
Nor is the argument persuasive that the issuance of a PERB complaint followed by	Nor is the argument persuasive that the issuance of a PERB complaint followed by
DPA's withdrawal of implementation of the LBFO years two and three, demonstrates a change	DPA's withdrawal of implementation of the LBFO years two and three, demonstrates a change
in DPA's bargaining position. DPA may have recognized that the original implementation of	in DPA's bargaining position. DPA may have recognized that the original implementation of
88

an LBFO
of
several years duration might violate the Dills Act. Or, as encouraged by PERB, it	an LBFO of several years duration might violate the Dills Act. Or, as encouraged by PERB, it
may have merely sought to settle an unfair practice case. However, nothing in the record	may have merely sought to settle an unfair practice case. However, nothing in the record
indicates DP A was ready to change its bargaining position
if
negotiations resumed. PERB	indicates DPA was ready to change its bargaining position if negotiations resumed. PERB
issuance and	issuance and possible settlement of the complaint over implementation did not bind DPA at the	possible settlement
of
the complaint over implementation did not bind DP A at the
bargaining table. DPA could	bargaining table. DPA could continue to insist on the terms of the LBFO years two and three	continue to insist on the terms
of
the LBFO years two and three
at the bargaining table. The record	at the bargaining table. The record does not evince that DPA would make a concession in	does not evince that DP A would make a concession
in
negotiations.	negotiations.
In sum, the mere occurrence of these events did not demonstrate a change in the	In sum, the mere occurrence
of
these events did not demonstrate a change in the
bargaining position
of
either party, the "change in circumstances" necessary to reestablish	bargaining position of either party, the "change in circumstances" necessary to reestablish the	the
obligation to bargain. As	obligation to bargain. As discussed, under Rowland USD, a possibility for fruitful discussion	discussed, under Rowland USD, a possibility for fruitful discussion
results "when one party proposes a concession from its	results "when one party proposes a concession from its earlier bargaining position." (Rowland	earlier bargaining position." (Rowland
Unified School District, supra, PERB Decision No. 1053, citing NLRB v. Sharon Hats, Inc.	Unified School District, supra, PERB Decision No. 1053, citing NLRB
v.
Sharon Hats, Inc.
(5th Cir. 1961) 289 F.2d 628 enforcing (1960) 127 NLRB 947.)	(5th Cir. 1961) 289 F.2d 628 enforcing (1960) 127 NLRB 947.)
Nor were the CCPOA requests to bargain following these events sufficient to obligate	Nor were the CCPOA requests to bargain following these events sufficient to obligate
DPA to resume	DPA to resume negotiations. A "request by one party for additional meetings, if	negotiations. A "request by one party for additional meetings,
if
unaccompanied by an indication of the areas in which that party foresees future concessions, is	unaccompanied by an indication
of
the areas in which that party foresees future concessions,
is
...	. . . insufficient to defeat impasse where the other party has clearly announced that its position	insufficient to defeat impasse where the other party has clearly announced that its position
is	is final." (TruServe Corp. v. NLRB (D.C. Cir. 2001) 254 F.3d 1105, 1117 (TruServe).)	final." (TruServe Corp.
v.
NLRB (D.C. Cir. 2001) 254 F.3d 1105, 1117 (TruServe).)
Nothing in the Association's letters demanding a return to bargaining demonstrates	Nothing in the Association's letters demanding a return to bargaining demonstrates
CCPOA's willingness to make concessions or compromise. Under Rowland USD, supra,	CCPOA's willingness to make concessions or compromise. Under Rowland USD, supra,
PERB Decision No. 1053, that alone is sufficient to find no violation of DPA's obligation to	PERB Decision No. 1053, that alone is sufficient to find no violation of DP A's obligation to
bargain.	bargain.
In addition to not indicating any concession of its own, CCPOA's return to bargaining	In addition to not indicating any concession of its own, CCPOA' s return to bargaining
was	was conditioned upon one by DPA, rescission of its implementation of the LBFO. Although	conditioned upon one by DP A, rescission of its implementation of the LBFO. Although
99

impasse had not been broken, and the required change in circumstances had not yet occurred.
10
the Association argues that it was merely suggesting or requesting a	the Association argues that it was merely suggesting or requesting a return to the pre-	return to the pre-
implementation status quo, the	implementation status quo, the record demonstrates otherwise. Alexander's letter of	record demonstrates otherwise. Alexander's letter
of
December 27, 2007, states "[n]o good	December 27, 2007, states "[njo good faith negotiations are possible" without a return to status	faith negotiations are possible" without a return to status
quo	quo and "[the State and CCPOA must return to good faith negotiations under section 3517.8,	and "[t]he State and CCPOA must return to good faith negotiations under section 3517.8,
and can only do so if the LBFO dies, as it was forced on Unit 6 in one 'package proposal.'"	and can only do so
if
the LBFO dies, as it was forced on Unit 6 in one 'package proposal."'
When	When clarifying CCPOA's demand to bargain on January 16, Branine states, "[further,	clarifying CCPOA's demand to bargain on January 16, Branine states, "[f]urther,
CCPOA reiterates its	CCPOA reiterates its demand that, prior to commencement of negotiations, DPA return	demand that, prior to commencement
of
negotiations, DPA return
conditions	conditions to those in existence prior to September 18, 2007." This letter and others that	to those in existence prior to September 18, 2007." This letter and others that
followed ask whether DP A required other terms to begin bargaining.	followed ask whether DPA required other terms to begin bargaining. However, CCPOA's	However, CCPOA' s
condition of a return to pre-implementation status quo was never withdrawn, despite DPA's	condition
of
a return to pre-implementation status quo was never withdrawn, despite DP
A's
consistent opposition.	consistent opposition.
Demanding this condition to resume bargaining can only contribute to a conclusion that	Demanding this condition to resume bargaining can only contribute to a conclusion that
impasse had not been broken, and the required change in circumstances had not yet occurred.
"Absent conduct demonstrating a willingness to compromise further, a bald statement	"Absent conduct demonstrating a willingness to compromise further, a bald statement
of disagreement [that impasse continues] by one party to the negotiations is insufficient to	
of
disagreement [that impasse continues] by one party to the negotiations is insufficient to
defeat an impasse." (TruServe, supra, 254 F.3d 1105, 1117.) The events relied on by CCPOA	defeat an impasse." (TruServe, supra, 254 F.3d 1105, 1117.) The events relied on by CCPOA
did result in disagreement over whether impasse continued, however, the subsequent	did result in disagreement over whether impasse continued, however, the subsequent
communications between the parties did not	communications between the parties did not demonstrate the required "willingness to	demonstrate the required "willingness to
compromise." 	Accordingly, I find that	compromise." Accordingly, I find that DPA did not violate the Dills Act by refusing, through	DPA did not violate the Dills Act by refusing, through
March 5, 2008, to participate in post-impasse	March 5, 2008, to participate in post-impasse negotiations.	negotiations.
PROPOSED ORDER	PROPOSED ORDER
Based upon the foregoing findings of fact	Based upon the foregoing findings of fact and conclusions of law and the entire record	and conclusions of law and the entire record
in this matter, it is found that the complaint and the underlying	in this matter, it is found that the complaint and the underlying unfair practice charge in PERB	unfair practice charge in PERB

11
Case	Case No. SA-CE-1665-S, California Correctional Peace Officers Association v. State of	No. SA-CE-1665-S, California Correctional Peace Officers Association
v.
State
of
California (Department
of
Personnel Administration) are hereby dismissed.	California (Department of Personnel Administration) are hereby dismissed.
Pursuant to	Pursuant to California Code of Regulations, title 8, section 32305, this Proposed	California Code
of
Regulations, title
8,
section 32305, this Proposed
Decision and Order shall become final unless a party files a statement of exceptions with the	Decision and Order shall become final unless a party files a statement
of
exceptions with the
Public Employment Relations Board (PERB or Board) itself within 20 days of service of this	Public Employment Relations Board (PERB or Board) itself within 20 days
of
service
of
this
Decision.	Decision. The Board's address is:	The Board's address is:
Public Employment Relations Board	Public Employment Relations Board
Attention: Appeals Assistant	Attention: Appeals Assistant
1031 18th Street	
1031 18th Street
Sacramento, CA 95811-4124	Sacramento, CA 95811-4124
(916) 322-8231	(916) 322-8231
FAX: (916) 327-7960	FAX: (916) 327-7960
In accordance with	In accordance with PERB regulations, the statement of exceptions should identify by	PERB regulations, the statement
of
exceptions should identify by
page citation or exhibit number the	page citation or exhibit number the portions of the record, if any, relied upon for such	portions
of
the record,
if
any, relied upon for such
exceptions. (Cal. Code Regs., tit. 8, § 32300.)	exceptions. (Cal. Code Regs., tit. 8, $ 32300.)
A document is considered "filed" when actually received during a regular	A document is considered "filed" when actually received during a regular PERB	PERB
business day. (Cal. Code Regs., tit. 8,
§§
32135, subd. (a) and	business day. (Cal. Code Regs., tit. 8, $8 32135, subd. (a) and 32130; see also Gov. Code,	32130; see also Gov. Code,
§ 11020, subd. (a).) A document is also considered "filed" when received by	$ 1 1020, subd. (a).) A document is also considered "filed" when received by facsimile	facsimile
transmission before the close of business together with a Facsimile Transmission Cover Sheet	transmission before the close
of
business together with a Facsimile Transmission Cover Sheet
which meets the requirements
of
California Code
of
Regulations, title 8,	which meets the requirements of California Code of Regulations, title 8, section 32135(d),	section 32135(d),
provided the filing party also places the original, together with the required number
of	provided the filing party also places the original, together with the required number of copies	copies
and proof
of
service, in the U.S. mail. (Cal. Code Regs., tit. 8, § 32135, subds. (b), (c) and (d);	and proof of service, in the U.S. mail. (Cal. Code Regs., tit. 8, $ 32135, subds. (b), (c) and (d);
see also Cal. Code Regs., tit. 8, $$ 32090 and 32130.)	see also Cal. Code Regs., tit. 8,
§§
32090 and 32130.)
Any statement
of
exceptions and supporting brief must be served concurrently with its	Any statement of exceptions and supporting brief must be served concurrently with its
filing upon each party to this proceeding.	filing upon each party to this proceeding. Proof of service shall accompany each copy served	Proof of service shall accompany each copy served
11

12
on a party or filed with the Board itself. 	(See Cal. Code Regs .. tit. 8.	on a party or filed with the Board itself. (See Cal. Code Regs.. tit. 8. $$ 32300. 32305, 32140,	SS 32300. 32305, 32140,
and 32135, subd. (c).)	and 32135, subd. (c).)
-~--~----
Bernard McMonigle	Bernard McMonigle 	VJI
Chief Administrative Law Judge	Chief Administrative Law Judge
12