State of California (Department of Corrections and Rehabilitation) (PERB 2108S)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
CALIFORNIA CORRECTIONAL PEACE
OFFICERS ASSOCIATION,
Charging Party,
V.
STATE OF CALIFORNIA (DEPARTMENT OF
CORRECTIONS & REHABILITATION),
Respondent.
Case No. SA-CE-1705-S
PERB Decision No. 2108-S
May
10, 2010
Appearances: Suzanne L. Branine, Staff Counsel, for California Correctional Peace Officers
Association; Todd M. Ratshin, Labor Relations Counsel, for State
of
California (Department
of
Corrections & Rehabilitation).
Before Dowdin Calvillo, Chair; McKeag and Wesley, Members.
DECISION
McKEAG, Member: This case comes before the Public Employment Relations Board
(PERB or Board) on appeal by the California Correctional Peace Officers Association
(CCPOA)
of
a dismissal (attached)
of
its unfair practice charge. The charge alleged that the
State
of
California (Department
of
Corrections & Rehabilitation) (CDCR) violated the Ralph
C. Dills Act (Dills Act)1 by failing to bargain changes to a protective vest policy. CCPOA
alleged that this conduct constituted a violation
of
Dills Act section 3519.
The unfair practice charge alleges CDCR engaged in surface bargaining in connection
with bargaining over changes to a protective vest policy. The Board agent found that the
record failed to support a finding that CDCR' s conduct constituted bad faith bargaining. 	In
1 The Dills Act is codified at Government Code section 3512 et seq. Unless otherwise
indicated, all statutory references herein are to the Government Code.

addition, the Board agent found that CCPOA failed to plead sufficient facts to support its
claims. Accordingly, the Board agent dismissed the charge.
We have reviewed the entire record in this matter and find the warning and dismissal
letters well-reasoned, adequately supported by the record and in accordance with applicable
law. Accordingly, we hereby adopt the warning and dismissal letters2 as a decision
of
the
Board itself, subject to the following brief discussion regarding CCPOA's alleged pleading
defect.
DISCUSSION
The Department
of
Personnel Administration (DPA) notes that although it was the
named party in the charge, the charge was based solely on conduct committed by CDCR.
Accordingly, DPA contends the charge was filed against the wrong party and should be
dismissed on that basis alone.
The State
of
California is the respondent in charges filed against the State, and DPA is
the agency that receives service
of
Dills Act charges. The caption identifying specific
departments assists the parties in identifying the area
of
the State where the alleged unfair
practice occurred. Here, DP A, who was properly served with a copy
of
the charge, has failed
to show any prejudice resulting from the failure to identify CDCR on the face
of
the charge.
The Board notes an apparent typographical error on page 1 of the Warning letter. 	The
last sentence
of
the quoted language on that page erroneously refers to non-uniformed peace
officers at the beginning of the sentence. The sentence should read:
2
Whereas fl:Bfl:-uniformed peace officers had been required to wear
their vests in a concealed fashion under their uniforms, non:-
uniformed peace officers, such as correctional counselors, were
permitted to wear their vests over their clothing.

3
PERB Regulation 32620(b)(l) authorizes a Board agent to, "[a]ssist the charging party
to state in proper form the information required by section 32615." (PERB regs. are codified
at Cal. Code Regs., tit. 8, § 31001 et seq.) Based on this regulation, we find the Board agent
has since properly identified CDCR as the actual respondent in the case. (See San Marcos
Educators Association, CTAINEA (Duran-Chugon) (1988) PERB Decision No. 711.) We,
therefore; conclude that CCPOA's failure to name CDCR as the respondent in this case is not
sufficient, standing alone, to warrant dismissal.
ORDER
The unfair practice charge in Case No. SA-CE-1705-S is hereby DISMISSED
WITHOUT LEAVE TO AMEND.
Chair Dowdin Calvillo and Member Wesley joined in this Decision.
3

.,..,...-
STATE OF CALIFORNIA 	( 	ARNOLD SCHWARZENEGGER, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
103
I 18th Street
Sacramento, CA 95811-4124
Telephone: (916) 327-7242
Fax: (916) 327-6377
December 4, 2008
Suzanne
L.
Branine, Staff Legal Counsel
California Correctional Peace Officers Association
755 Riverpoint Drive, Suite 200
West Sacramento, CA 95605-1634
Re: 	California Correctional Peace Officers Association v. State
of
California, (Department
of
Corrections & Rehabilitation)
Unfair Practice Charge No. SA~CE-1705-S
DISMISSAL LETTER
Dear Ms. Branine:
The above-referenced unfair practice charge was filed with the Public Employme~-i'Relations
Board (PERB or Board) on July 31, 2008. The California Correctional Peace Officers
Association (CCPOA, Union, or'Charging Party) alleges that the State
of
California
(Department
of
Corrections & Rehabilitation) (State, CDCR, or Respondent) violated section
3519
of
the Ralph C. Dills Act (Dills Act)1 by engaging in surface bargaining.
You were informed in the attached letter dated November 4, 2008 (Warning Letter), that the
above-referenced charge did not state a prima facie case. You were advised that,
if
there were
any factual inaccuracies or additional facts that would correct the deficiencies explained in that
letter, you should amend the charge. You were further advised that, unless you amended the
charge to state a prima facie case or withdrew it prior to November 14, 2008, the charge would
be dismissed. 	On November 10, 2008, you verified to me during our telephone conversation
that you had in fact received the Warning Letter. At your request, I extended at that time the
deadline to file an amended charge to December 3, 2008.
No amended charge was filed with PERB by or on the December 3, 2008 deadline. Therefore,
this charge is being dismissed based on the facts and reasons set forth in the Warning Letter.
Right to Appeal
Pursuant to PERB Regulations,2 Charging Party 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. (Cal. Code Regs, tit. 8, sec. 32635(a).) Any document filed with the Board
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-1705-S
December 4, 2008
Page 2
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 during a regular PERB business day.
(Cal. Code Regs, tit. 8, secs. 32135(a) and 32130; see also Gov. Code, sec. 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 PERB 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. (Cal. Code Regs, tit: 8,
secs. 32135(b), (c) and (d); see also Cal. Code Regs., tit. 8, secs. 32090 and 32130.)
The Board's address is:
Public Employment Relations Board
Attention: Appeals Assistant
I 031 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. (Cal. Code Regs, tit. 8, sec. 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 Cal. Code Regs., tit. 8, sec. 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.
(Cal. Code Regs, tit. 8, sec. 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. (Cal. Code Regs, tit. 8, sec. 32132.)

SA-CE-1705-S
December 4, 2008
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,
TAMIR.
BOGERT
General Counsel
By _
	__,,
_____________
_
Yaron Partovi
Regional Attorney
Attachment
cc: 	Todd M. Ratshfo

STATE OF CALIFORNIA 	(
(-----.,
\ 	ARNOLD SCHWARZENEGGER, Governor	
=============~=============-==-
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
1031
lSthStreet
Sacramento, CA 95811-4124
Telephone: (916) 327-7242
Fax: (916) 327-63 77
November 4, 2008
Suzanne L. Branine,
Staff
Legal Counsel
California Correctional Peace Officers Association
755 Riverpoint Drive, Suite 200
West Sacramento, CA 95605-1634
Re: 	Californi.a Correctional Peace Officers Association v. State
of
California (Department
of
Corrections & Rehabilitation)
Unfair Practice Charge No. SA-CE-1705-S
WARNING LETTER
Dear Ms. Branine:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on July 31, 2008. The California Correctional Peace Officers
Association (CCPOA, Union, or Charging Party) alleges that the State
of
California
(Department
of
Corrections & Rehabilitation) (State, CDCR, or Respondent) violated section
3519
of
the Ralph C. Dills Act (Dills Act)1 by engaging in surface bargaining.
Investigation
of
the charge revealed the following relevant information. CCPOA is the
exclusive representative
of
State Bargaining Unit 6 (BU 6) employees
of
the State. CCPOA
and CDCR were parties to a Memorandum
of
Understanding (MOU) that expired by its terms
on June 30, 2006. On September 12, 2007, the State presented its last, best, and final offer
(LBFO) to CCPOA. CCPOA did not accept the State's LBFO. On September 18, 2007, the
State notified CCPOA that, "[p ]ursuant to the Ralph C. Dills Act, Government Code Section
3517.8, the State is exercising its right to implement.
..
its last, best, and final offer
....
"
On November 27, 2007, CDCR provided notice to CCPOA that it intended to revise its
protective vest policy. On November 30, 2007, CCPOA requested to meet and confer over the
impact
of
these proposed changes.
It is alleged by Respondent that the revisions to the protective vest policy involved. the
following:
One substantive revision to the policy involved the wearing
of
vests by non-uniformed peace officers. Whereas non-uniformed
peace officers had been required to wear their vests in a
concealed fashion under their uniforms, non-uniformed peace
officers, such as correctional counselors, were permitted to wear
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-1705-S
November 4, 2008
Page 2
their vests over their clothing, Under the revisions to the
protective vest policy, non-uniformed peace officers would be
required to wear their vests in a concealed fashion under their
clothing consistent with manufacturer recommendations and
instructions.
On January 30 and 31, 2008, the parties met and conferred over the impact
of
the changes to
the protective vest policy. In attendance for the Union was, among others, CCPOA Field
Representative Cory Davis.
During negotiations CCPOA team members passed 14 proposals. It is alleged that CDCR
responded to each proposal with either a "no," with no counter offer, or with a claim that the
proposal was a matter outside the scope
of
representation.
The charge also alleges that on January 31, 2008, during discussion
of
the new vest policy,
A CCPOA team member was trying to express his concerns on
several issues raised by the
new
policies. 	CDCR team members
refused to ack_nowledge that he was speaking, would not look at
him while he spoke, and even though he had not finished
expressing his concerns on the policy, CDCR team members got
up and walked out
of
negotiations. 	CDCR team members walked
out
of
negotiations even though CCPOA team members clearly
stated that they were not finished passing proposals and that they
thought there was room for movement. They stated that the table
was not at impasse.
On March 7, 2008, CDCR issued a letter to CCPOA summarizing the discussion held at the
January 30-31 sessions. The letter stated in pertinent part:
During these meetings, CCPOA passed 14 proposals
....
None
of
the proposals related to an impact
of
CDCR's change in its
vest policy. The proposals ranged from a request for more money
for all [BU 6] staff, to changing
of
the calendar for inspections
of
the vests.
At the end
of
the first day at 5:00 p.m., Mr. Davis gave me an
information request totaling seven items; however, none
of
the
items related to issues within scope
of
this table. Nevertheless,
management responded to each item the following day. 	Our
meeting ended on January 31 st when CCPOA was unable to
identify any issues within scope resulting from the changes in the
vest policy.

SA-CE-1705-S
November 4, 2008
Page 3
On January
31st,
during out meeting, I asked you several times:
"What items are within scope that we can reach agreement
on,
or
what
do
you feel has not been addressed?" [Italics in original].
You were unable to identify any subject within scope for use to
discuss. 	Shortly thereafter, the meeting concluded.
DISCUSSION
The charge alleges that the employer violated Dills Act section 3519(c}by engaging in bad
faith or "surface" bargaining. It is the essence
of
surface bargaining that a party goes through
the motions
of
negotiations, but in fact is weaving otherwise unobjectionable conduct into an
entangling fabric to delay or prevent agreement. (Muroc Unified School District (1978) PERB
Decision No. 80.) Where there is an accusation
of
surface bargaining, PERB will resolve the
question
of
good faith by analyzing the totality
of
the accused party's conduct. The Board
weighs the tacts to determine whether the conduct at issue "indicates an intent to subvert the
negotiating process or is merely a legitimate position adamantly maintained." (Oakland
Unified School District (1982) PERB Decision No. 275.)
The indicia
of
surface bargaining are many. Entering negotiations with a "take-it.:or-leave-it"
attitude evidences a failure
of
the duty to bargain because it amounts to merely going through
the motions
of
negotiations. (General Electric Co. (1964) 150 NLRB 192, 194, enf. 418 F.2d
736.) Recalcitrance in the scheduling
of
meetings is evidence
of
manipulation to delay and
obstruct a timely agreement. (Oakland Unified School District (1983) PERB Decision No.
326.) Dilatory and evasive tactics including canceling meetings or failing to prepare for
meetings is evidence
of
bad faith. 	(Ibid.) Conditioning agreement on economic matters upon
prior agreement on non-economic subjects is evidence
of
an unwillingness to engage in a give-
and-take. 	(State
of
California (Department of Personnel Administration) (1998) PERB
Decision No. 1249-S.)
Other factors that have been held to be indicia
of
surface bargaining include: negotiator's lack
of
authority which delays and thwarts the bargaining process (Stockton Unified School District
(1980) PERB Decision No. 143); insistence on ground rules before negotiating substantive
issues (San Ysidro School District (1980) PERB Decision No. 134); and reneging on tentative
agreements the parties already have made (Charter Oak Unified School District (1991) PERB
Decision No. 873; Stockton Unified School District, supra, PERB Decision No. 143;
Placerville Union School District (1978) PERB Decision No. 69).
It is clear, however, that while a party may not merely go through the motions, it may lawfully
maintain an adamant position on any issue. Adamant insistence on a bargaining position is not
necessarily refusal to bargain in good faith. 	(Oakland Unified School District, supra, PERB
Decision No. 275.) "The obligation of the employer to bargain in good faith does not require
the yielding of positions fairly maintained." (NLRB v. Herman Sausage Co. (5th Cir. 1960)
275 F.2d 229.)

SA-CE-1705-S
November 4, 2008
Page 4
(
The charge alleges that the following indicia demonstrate CDCR engaged in surface
bargaining: (1) refusing to pass counterproposals; (2) refusing to acknowledge a CCPOA team
member's concerns; and (3) walking out on negotiations prior to either impasse or agreement.
I. 	State's Refusal To Make Counterproposals
A party's willingness to exchange reasonable proposals and its attempts to reconcile
differences during the bargaining process indicate its intent to bargain in good faith. 	(See
Gonzales Union High School District (1985) PERB Dec. No. 480; Oakland Unified School
District (1981) PERB Dec. No. 178.) PERB has held that "[a] flat refusal to reconcile
differences
by
failing to offer counterproposals could be construed to be in bad faith
if
no
explanation
or
rationale supports the employer's position." (Ibid.) Total inflexibility in
bargaining positions, especially when coupled with other indicia, may be the basis for a finding
of
bad faith. 	(Fremont Unified School District (1980) PERB Decision No. 136.)
However, the duty to bargain does not compel either party to make concessions. Insistence on
a firm position is not necessarily evidence
of
bad faith because the law merely requires the
parties to maintain a sincere interest in reaching an agreement, and even
if
the reasons for
insisting on a particular position or contractterm are questionable,
if
the belief is sincerely
held, it may be maintained even
if
it produces a stalemate. (See Public Employees Assn. v.
Board
of
Supervisors (1985) 167 Cal.App.3d 797, 805-806; Placentia Fire Fighters v. City
of
Placentia (1976) 57 Cal.App.3d 9, 22-23; Los Angeles County Employees Assn., Local 660 v.
County
of
Los Angeles (1973) 33 Cal.App.3d 1, 4, n.3; Trustees
of
the California State
University (2006) PERB Decision No. 1842-H; City
of
Fresno (2006) PERB Decision
No. 1841-M; County
of
Riverside (2004) PERB Dec. No. 1715-M; Oakland Unified School
District, supra, PERB Dec. No. 275.) The obligation to bargain in good faith merely requires
the parties to explain the reasons for a particular bargaining position with sufficient detail to
"permit the negotiating process to proceed on the basis
of
mutual understanding." (Jefferson
School District (1980) PERB Decision No. 133.)
In the context
of
this record, it cannot be concluded that the State's conduct regarding the
protective vest policy constituted any indicia
of
bad faith bargaining. It appears that during
negotiations, with respect to the protective vest policy, the State drove a hard bargain. During
negotiations, the State refused to accept any
of
the 14 proposals passed by CCPOA because
these
proposals-as
alleged by CDCR in their March 7, 2008
letter-either
failed to relate to
matters that impact bargaining unit employees or were not matters within the scope
of
representation. (See, e.g., Kem Community College District (1983) PERB Decision No. 372
[exclusive representative's failure to make proposals within scope regarding the effects
of
a
nonnegotiable decision relieved the employer
of
any violation].) Thus, even
if
CCPOA
believes CDCR's position on the protective vest policy was questionable, the facts in the
record demonstrate that CDCR met its obligations under the Dills Act by providing reasons for
its particular bargaining positions.
If CDCR' s negotiators had persisted in flatly refusing to negotiate about the protective vest
policy, this may well have been a different case. (See e.g., Regents of the University of

SA-CE-1705-S
November 4, 2008
Page 5
California (1983) PERB Decision No. 356-H, pp 21-22 [when a party preemptively announces
it will not deviate from a position under any circumstances, bad faith may be inferred].)
However, this is not what happened here. Again, while CDCR espoused a hard line, it appears
that such a position was not etched in stone. During negotiations
CDCR
informed CCPOA
several times: "What items are within scope that we can reach agreement on, or what do you
feel has not been addressed?" These facts demonstrate that CDCR had a flexible position.
Further, there are no facts in the record to show that CCPOA clarified this request or responded
to CDCR's position. Based on the current record, the State's conduct with respect to its refusal
to provide counterproposals, considered in its totality, was not unlawful.
The charge alleges CDCR's response to CCPOA's proposals "was inappropriate
...
because
there were many possible counterproposals which CDCR could have offered."
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.)
In addition to the deficiencies discussed above, the charge presently fails to meet its burden
under United Teachers-Los Angeles (Ragsdale),
su12ra,
PERB Decision No. 944 because it fails
to describe, for example, what proposals CCPOA offered the State and what counterproposals
CCPOA believes CDCR could have offered to those proposals.
II. 	State's Refusal to Acknowledge a CCPOA Team Member's Concerns
The charge alleges that CDCR's conduct (i.e., CDCR managers "refused to acknowledge" a
CCPOA negotiator and refused to look at him) during negotiations demonstrates an indicia
of
bad faith bargaining.
The charge presently fails to meet its burden under United Teachers-Los Angeles (Ragsdale),
supra, PERB Decision No. 944 because it fails to, for example: (1) identify who among
CCPOA's team members was allegedly ignored by CDCR when he sought to "express his
concerns" over the policy changes; (2) identify whether the "concerns" were over
management's decision to implement the policy, and
if
not, describe the "concerns" and how
such concerns relate to the effects on bargaining unit employees; (3) identify which CDCR
negotiators refused to look at the CCPOA negotiator while he sought to "express his
concerns"; and (4) describe how CDCR "refused to acknowledge" the CCPOA team member,
and generally how one acknowledges an opposing negotiator during bargaining.
Secondly, assuming the above deficiencies have been cured by the Charging Party, the charge
presently fails to demonstrate any indicia of bad faith bargaining. Specifically, the Dills Act
does not require the parties to negotiation to look at each other or to make eye contact. In

SA-CE-1705-S
November 4, 2008
Page 6
addition, there are no applicable standards under other PERE-administered collective
bargaining statutes that might obligate Respondent to follow such etiquette during bargaining.
Further, Charging Party's view that such conduct at the negotiation table is unlawful is not
supported by any PERB or National Labor Relations Board (NLRB) authorities.
III. Walking Out During Negotiations
The charge alleges that another factor
of
bad faith or surface bargaining came about when
CDCR team members walk out
of
negotiations before the parties were at impasse.
The charge presently fails to meet its burden under United Teachersc.Los Angeles (Ragsdale),
supra, PERB Decision No. 944 because it fails to describe, for example: (1) "who" from
CDCR's bargaining team walked out
of
negotiations; (2) whether the CDCR team members
returned to the table on January 31, 2008; and (3) whether CDCR offered to schedule another
negotiation meeting before walking out.
Walking out
of
a bargaining session can constitute indicia
of
surface bargaining. (San Ysidro
School District, supra, PERB Decision No. 134; Arkansas Grain Co. (1968) 172 NLRB 1742
[walking out
of
bargaining sessions for irrelevant reasons].) However, the presence
of
one
indicia alone will not establish bad faith bargaining. (Oakland Unified School District (1996)
PERB Decision No. 1156.)
CONCLUSION
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
an amended
charge or withdrawal is not received in this matter before November 14, 2008, your charge
shall be dismissed.
If
you have any questions, please call me at the above telephone number.
Sincerely,
Yaron Partovi
Regional Attorney
yp