PERB Decision No. 2214S

Full text

OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
STATE OF CALIFORNIA,
Employer,
and
PEACE OFFICERS OF CALIFORNIA,
Petitioner,
and
CALIFORNIA STATEWIDE LAW
ENFORCEMENT ASSOCIATION,
Exclusive Representative.
Case No. SA-SV-171-S
PERB Decision No. 	2214-S
November 1, 2011
Appearances: Rose Law Firm by Joseph W. Rose, Attorney, for Peace Officers of California;
Carroll, Burdick & McDonough by Jason H. Jasmine and Gary M. Messing, Attorneys, for
California Statewide Law Enforcement Association.
Before Martinez, Chair; McKeag and Huguenin, Members.
DECISION
HUGUENIN, Member: 	This case comes before the Public Employment Relations
Board (PERB or Board) on exceptions filed by the Peace Officers of California (POC) to a
proposed decision (attached) of the administrative law judge (ALJ) arising out of a severance
petition filed by POC. 	POC seeks to sever a group of state employees in classifications
designated under the Penal Code as peace officers from existing state Unit 7 (Protective
Services and Public Safety).1 Unit 7 is currently represented by 	California Statewide
Enforcement Association (CSLEA).	Enforcement Association (CSLEA).
The petition specifically stated the proposed unit included:	The petition specifically stated the proposed unit included:

In the proposed decision, the ALJ concluded that, contrary to POC's contention, state
employed peace officers do not have a statutory right to a separate peace officer-only unit and
that POC failed to rebut the presumption that the existing Unit 7 is more appropriate than
POC's proposed unit. Therefore, the ALJ proposed to dismiss POC's severance petition.
We have reviewed the entire record, including the proposed decision, the hearing
transcripts and exhibits, POC's exceptions2 and CSLEA's response, in light
of
the relevant law.
Based on this review, the Board finds the findings
of
fact and conclusions
of
law to be weil
reasoned, adequately supported by the evidentiary record and in accordance with the applicable
law. Accordingly, the Board adopts the proposed decision as the decision
of
the Board itself,
as supplemented by the following discussion
of
POC's exceptions.
ISSUES ON APPEAL
All
of
POC's claims were raised and considered in the proceedings below, and
adequately addressed in the ALJ's proposed decision. In adopting the ALJ's findings
of
fact
and conclusions
of
law, the Board concurs in the ALJ' s reasoning and determination that the
All job classifications within Bargaining Unit 07, which are
declared by law to be peace officers within the meaning
of
the
Calif. Penal Code, Part 2, Title 3, Chapter 4.5, commencing with
Section 830.
POC's unit description is identical to that set forth the Meyers-Milias-Brown Act (MMBA),
section 3508(a), and the former George Brown Act (Brown Act), former Government Code
section 3535. (The MMBA is codified at Gov. Code, § 3500 et seq.)
in
2 POC also requests oral argument. Historically, the Board has denied 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 before 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
Education (1991)
PERB Decision No. 913.) Based on our review of the record, all of the above criteria are met in
this case. Accordingly, POC's request for oral argument is denied.
2

petition should be dismissed. By the following supplemental discussion, the Board
focuses attention on the following two pivotal points: (1) peace officer employees are not
statutorily entitled to a separate unit; and (2) the presumption that the existing unit is "more
appropriate" than the proposed unit has not been rebutted.
In response to POC's exceptions, CSLEA argues that POC's exceptions contain
inappropriate factual allegations and inadmissible evidence, and that POC's filing is not timely
and shouid be disregarded. As noted below, we conclude that POC's exceptions were timely,
but did include inappropriate content which we disregard.
DISCUSSION
I. 	Peace Officer Employees Are Not Statutorily Entitled To A Separate Unit
The Brown Act was enacted in 1961 to provide organizational rights for state and local
public employees. 	Specifically, former Government Code section 3535 provided:
The state may, in accordance with reasonable standards,
designate positions or classes of positions which have duties
consisting primarily of the enforcement of state laws, and may by
resolution adopted after a public hearing, limit or prohibit the
right of employees in such positions or classes of positions to
form, join or participate in employee organizations where it is in
the public interest to do so; however, the state may not prohibit
the rights of its employees who are full-time 'peace officers,' as
that term is defined in Chapter 4.5 (commencing with
Section 830) of Title 3 of Part 2 of the Penal Code, to join or
participate in employee organizations which are composed solely
of such peace officers, which concern themselves solely and
exclusively with the wages, hours, working conditions, welfare
programs, and advancement of the academic and vocational
training in furtherance of the police profession, and which are not
subordinate to any other organization.
The right of employees to form, join and participate in activities
of employee organizations shall not be restricted by the state on
any other grounds other than those set forth in this section.[3]
3 MMBA section 3508 is almost identical to former Government Code section 3535.
3

Act Section 3521.74 provides:
The board may, in accordance with reasonable standards,
designate positions or classes of positions which have duties
consisting primarily of the enforcement of state laws. Employees
so designated shall not be denied the right to be in a unit
composed solely of such employees.
Dills Act section 3521. 7 does not contain the prohibitory language of the Brown Act or
the MMBA, which gives peace officers the right to belong to an employee organization
composed solely of peace officers. The omission of this language means that as to Dills Act
employees, PERB is not compelled by law to form peace officer-only units, and that peace
officer employees do not have the right to belong to a peace officer-only unit. (State of
California (Department of Personnel Administration) (1989) PERB Decision No. 773-S
(CSPOAICAUSE).)
Subsequent to the passage of the DiHs Act in 1978, the California Attorney General
opined that although PERB has the discretion to designate positions or classes of positions
which have duties consisting primarily of the enforcement of state laws, until PERB exercises
that discretion no rights are conferred by Dills Act section 3521.7. (61 Ops.Cal.Atty.Gen. 405,
410 (1978).)
In Unit Determination for the State of California (1979) PERB Decision No. 110-S
( Unit Determination) PERB created 20 state bargaining units. PERB then declined to exercise
its authority under Dills Act section 3521.7 to designate "law enforcement" positions. Instead,
PERB utilized criteria specified Section 3 521 apart from Section 3521. 7 for making its unit
determinations, including Unit 7.
4 The Dills Act is codified at Gov. Code § 3512 et seq.
4

a severance petition in Unit 7 resulted in a PERB decision.
( CSPOA/CA USE.) In that case, the California State Peace Officers Association sought to sever
a group of uniformed peace officers who patrolled a set geographic region. Again, PERB
declined to exercise its statutory discretion to designate "law enforcement" positions pursuant
to Dills Act section 3521.7 noting that the bargaining history did not justify a departure from
the initial unit determination.
Thus, state-employed peace officers do not have a statutory right to a separate peace
officer-only unit unless and until PERB designates positions or classes of positions whose
primary duties involve the enforcement of state laws. PERB has not yet made that designation
and we do not do so here.
II. The Presumption That The Existing Unit Is "More Appropriate" Than The Proposed Unit
Has Not Been Rebutted
The standard for determining the appropriateness of severance under the Dills Act
derives from Board precedent under the Educational Employment Relations Act. 5
In Sweetwater Union High School District (1976) EERB6 Decision No. 4 (Sweetwater),
the Board developed the concept of presumptively appropriate bargaining units. In Livermore
Valley Joint Unified School District (1981) PERB Decision No. 165 (Livermore), the Board
determined that when a petition is filed to sever a unit from a larger, presumptively appropriate
Sweetwater unit, the burden is on the petitioner to show that the requested unit is more
appropriate. (See San Juan Unified School District (1995) PERB Decision No. 1082,·
5 EERA is codified at Government Code section 3540 et seq.
6 Prior to January 1978, PERB was known as the Educational Employment Relations
Board or EERB.
5

Angeles Unified School District (1998) PERB Decision No. 1267; Temple City Unified
School District (1995) PERB Decision No. 1110.)
In Unit Determination, PERB created 20 state bargaining units, including Unit 7
(Protective Services and Public Safety Unit). 7 Ten years later, the Board decided
CSPOA/CAUSE, which involved a severance petition filed under the Dills Act. In
CSPOAICAUSE, the Board dismissed a petition to sever uniformed peace officers from Unit 7.
Adopting the ALJ's proposed decision, the Board concluded that the proposed unit shared a
community of interest with the existing unit, the interests of the petitioned-for employees had
not been trampled upon or ignored, and the issues of primary concern to the uniformed
employees' sub-unit were addressed in negotiations. (Ibid.)
In State of California (Department of Personnel Administration) (1990) PERB Decision
No. 794 (CSEA), the Board established a rebuttable presumption in favor of the existing
20 state bargaining units. In that case, the Board ruled that a petitioner seeking to modify an
existing unit has the burden of proving that the proposed unit is more appropriate than the
established unit. The Board approved the proposed unit modification. (Ibid.) This case
represents the only successful change in the original 20 bargaining units created under
Unit Determination. 8 The Board reasoned that the modification was appropriate because there
was a lack of common skills, working conditions and duties between the existing unit and the
proposed unit.
7 Also included in the 20 state bargaining units were Unit 5 (Highway Patrol) and
Unit 6 (Corrections), both containing mostly peace officer employees. The only non-peace
officer class now in Unit 5 is the Highway Patrol Cadet. The only other classification in the
Unit is Officer, California Highway Patrol (CHP). The only non-peace officer class in Unit 6
is the Parole Services Associate.
8 The unit modification divided Unit 3 into two bargaining units, one of which was
designated Unit 21.
6

State
of
California (Department
of
Personnel Administration) (1993) PERB Decision
No. 988-S, the Board affirmed the rebuttable presumption standard, dismissing a severance
petition to remove
21
psychologist classes from existing Unit 19, based on a shared community
of
interest with the current unit and a stable bargaining history.
In State
of
California (Department
of
Personnel Administration)
(l
993) PERB Decision
No. 1025-S (Guild), the Board again relied on the rebuttable presumption standard when it
dismissed a severance petition to remove pharmacists from established Unit
19.
In that case,
the petitioner failed to demonstrate a community
of
interest separate and distinct from the
existing unit.9 The Board also noted that the petitioner produced little evidence
of
the type
of
dramatic change in circumstances since Unit Determination that would justify the severance.
(Guild.)
In State
of
California (2011) PERB Decision No. 2178-S, the Board again relied on the
rebuttable presumption standard when it dismissed a petition to sever a group
of
Information
Technology classifications from Unit
1.
The petitioner failed to establish that its proposed unit
was more appropriate than the existing unit. The Board concluded that the petitioner
established neither that the interests
of
the petitioned-for employees had been trampled upon or
ignored, nor that their representational rights had been abrogated because
of
the existing Unit 1
structure.
In its exceptions here, POC argues that CSLEA has not adequately represented the
interests of peace officers in Unit 7. POC 's exceptions focus on the community of interest
shared among members of the proposed unit, the salary disparity between peace officers
Unit 7 and peace officers in other units, and POC's contention that the dissimilarity of interests
The Board also relied on the six-part test used in Livermore.
7

peace officers and other members
of
Unit 7 has impaired peace officer interests
throughout the bargaining history.
The employees within POC's proposed severance unit obviously share a strong
community
of
interest among themselves. The employees have a commonality
of
skills,
working conditions, duties, and similarity in the types
of
training. These similarities, however,
are not limited solely to those included within the petitioned-for unit. As the Board noted in its
initial unit determination, these interests are shared, in varying degrees, with other Unit 7
employe_es.
The salary disparity between Unit 7 peace officers and peace officers in other units
does not indicate that the interests
of
peace officers in the unit have been trampled upon or
ignored. A comparison
of
the salaries
of
Units
5,
6 and 7 show that the Special Agent,
Department
of
Justice (DOJ) is within 5.9 percent
of
the top step
of
the Parole Agent I and the
Special Agent Supervisor is within
5.
7 percent
of
the top step
of
the Parole Agent II. The
highest compensated Unit 7 uniformed officer class, the Fish and Game Warden, is within
8.9 percent
of
the top step
of
the Correctional Officer, and 22.3 percent
of
the top step
of
the
CHP Officer. 10
Although DOJ Special Agents may not have achieved parity with California
Department
of
Corrections and Rehabilitation Special Agents, CS LEA has advocated for such
parity and the special agents are within 6 percent
of
the Unit 6 Parole Agents.
Moreover, in 2006 when the Legislature approved a $30 million augmentation to the
employee compensation budget item to focus on recruitment and retention for wardens in
10
The Correctional Officer (top step) was within 12.3 percent of the salary of the CHP
Officer.
8

7,
peace officer classes received most
of
the salary adjustments. The exclusive
representative has made genuine efforts to cure pay disparity issues.
11
The bargaining history between
CS
LEA and the State also supports dismissal
of
the
severance petition. Almost all large bargaining units include a diversity
of
interests. Unit 7, at
the initial unit determination, was
no
exception. The record indicates however, that the
exclusive representative took specific organizational steps to accommodate pre-existing
differences. It organized special sub-units to insure representation
of
the individual concerns
of
all unit employees. Although no one group
of
employees could expect to achieve all its
bargaining goals, issues that relate to the sworn officers have been addressed in negotiations.
Even
if
bargaining success was not achieved in every area
of
concern to Unit 7 peace
officers, especially in relation to parity with Unit 5 peace officers, POC still must show that
this lack
of
success was due to CS LEA' s failure to represent or assert adequately the interests
of
Unit 7 peace officers in relation to its non-peace officers. The record reflects many
examples where CS LEA actively asserts the interests
of
peace officers. POC has failed to
demonstrate that any lack
of
bargaining success was due to CSLEA's failure to represent
adequately peace officer interests.
Additionally, one
of
the ways in which CS LEA represented its members was to convert
non-peace officer classes to peace officers. If the unit were severed, such advocacy could not
continue. A non-peace officer unit would have no interest in seeing that its members leave the
bargaining unit in order to become peace officers with better salaries and benefits. In this
Pay parity is not a dispositive factor, especially where the comparison is to a class
that is dissimilar in enforcement duties.
9

the members
of
Unit 7 are better served having a mixed unit
of
peace officers and non
peace officers.
Therefore, for the reasons above, we concur in the ALJ' s conclusion that POC
has
failed to demonstrate that rights
of
peace officers have been trampled upon or ignored,
or
that
issues
of
primary concern to peace officers have not been addressed in negotiations by
the
exclusive representative. Nor has POC demonstrated a dramatic change in circumstances since
PERB's
decision in Unit Determination and in CSPOA/CAUSE. Unlike the petitioner
in
CSEA, POC has not shown that there is a lack
of
common skills, working conditions and duties
between the existing unit and the proposed unit.
In sum, POC has failed to rebut the presumption that the existing unit is more
appropriate than the proposed unit.
III. Inappropriate Factual Allegations And Inadmissable Evidence In POC' s Statement
Of
Exceptions
PERB Regulation 32300(b )12 states: "Reference shall be made in the statement
of
exceptions only to matters contained in the record
of
the case." (San Diego Community
College District) (2001) PERB Decision No. 1445; California State University, San Francisco
(1991) PERB Decision No. 910-H.) Failure to comply with these requirements will result in
dismissal
of
the exceptions. (City
of
Torrance (2009) PERB Decision No. 2004.)
POC's statement
of
exceptions references matters not contained in the record.
Furthermore, POC attaches new exhibits that were not offered into evidence. POC has made
no showing that the new exhibits could not have been offered as evidence at the hearing.
Under PERB Regulation 32300, these extra-record matters and exhibits have not been
12
PERB regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.
10

by the Board. Moreover, even
if
the additional evidence were taken into
consideration by the Board, POC has still not shown that severance is appropriate.
IV.
	Timeliness
Of
POC' s Statement Of Exceptions
Any right or duty to act or respond within a prescribed period or on a date certain after
service
of
a document by mail must be extended five days
if
the address is within California.
(State
of
California (State Personnel Board) (2004) PERB Order No. Ad-343-S; PERB
Reg. 32130(c).)
By mail, PERB granted POC an extension
of
time to April 21, 2010 to file its
exceptions. Under PERB Regulation 32130(c), because PERB notified POC
of
its grant
of
the
extension by mail, POC had five additional days beyond the deadline to file its exceptions. POC
filed its exceptions on April 23, 2010 and thus POC's statement
of
exceptions is timely filed.
ORDER
For the above reasons and based upon the entire record in Case No. SA-SV-171-S, it
is
hereby ORDERED that the severance petition filed by the Peace Officers
of
California is
DISMISSED.
Chair Martinez and Member McKeag joined in this Decision.
11

ATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
STA TE OF CALIFORNIA,
Employer,
and
PEACE OFFICERS OF CALIFORNIA,
Petitioner,
and
CALIFORNIA STATEWIDE LAW
ENFORCEMENT ASSOCIATION,
Exclusive Representative.
REPRESENTATION
CASE NO. SA-SV-171-S
PROPOSED DECISION
(3/26/2010)
Appearances: Shannan J. Truong, Labor Relations Counsel and Linda A. Mayhew,
Assistant Chief Counsel, for State of California; Rose Law Firm, by Joseph W. Rose and
Diane M. Sabonis, Attorneys, for Peace Officers of California; Carroll, Burdick & McDonough
by Gary M. Messing and Jason H. Jasmine, Attorneys, and Kasey C. Clark, General
Manager/Chief Counsel, for California Statewide Law Enforcement Association.
Before Shawn P. Cloughesy, Administrative Law Judge.
PROCEDURAL HISTORY
On August 20, 2008, the Peace Officers of California (POC) filed a petition to sever a
group of state employees, primarily classifications (classes) designated under the Penal Code
as peace officers, from existing state Unit 7 (Protective Services and Public Safety).1 The
1 The petition specifically stated the proposed unit included:
All job classifications within Bargaining Unit 07, which are
declared by law to be peace officers within the meaning of the
Calif. Penal Code, Part 2, Title 3, Chapter 4.5, commencing with
Section 830 ....
POC's unit description is identical to that set forth in the Meyers-Milias-Brown Act
(MMBA), Government Code section 3508(a), and the former George Brown Act (Brown Act),
former Government Code section 3535. (The MMBA is codified at Gov. Code, § 3500 et seq.)

unit at the time the petition was filed was approximately 2656 state employees.2 On
September 18, 2008, the Public Employment Relations Board (PERB or Board) Sacramento
Regional Office found proof of support for the petition to be sufficient. The exclusive
representative, California State Law Enforcement Association (CSLEA), opposed the petition.
The State of California (State) initially declared its position as neutral. On
November 21, 2008, the State changed its position to oppose.
A settlement conference was held on October 22, 2008, but the parties did not reach a
resolution.
A prehearing conference was held on November 24, 2008. Formal hearing was held on
January 29 and 30; February 26 and 27; March 10, 11, 12, 24, 25 and 26; and April 23, 2009.
Briefs were submitted by POC and CSLEA on July 20, 2009, and reply briefs were submitted
on August 10, 2009. The State did not file a post-hearing or reply brief.
Motion to Exclude Exclusive Representative's Legal Representative
On December 30, 2008, the State Park Peace Officers Association of California
(SPPOAC), a CS LEA affiliate and supporter of the severance petition, moved to disqualify the
law firm of Carroll, Burdick & McDonough (CB&M), and especially Gary M. Messing
(Messing), from representing CS LEA pursuant to Rules of Professional Conduct,
rule 3-310(E)3 as SPPOAC announced its support for POC on October 1, 2007, and Messing
2 The proposed unit constituted approximately 40 percent of the established unit.
3 Rules of Professional Conduct, rule 3-310 provides in pertinent
(A) For purposes of this rule:
(1) "Disclosure" means informing the client or former client of
the relevant circumstances and of the actual and reasonably
foreseeable adverse consequences to the client or former
client;
2

obtained confidential information by representing SPPOAC. Messing represented
SPPOAC supervisors in February 2006 when he sent a letter to Department of Personnel
Administration (DPA) Labor Relations Officer Kristine Rodrigues (Rodrigues) requesting
DPA to analyze Supervisory State Park Peace Officer classes to adjust their salaries under the
"like pay for like work" provisions of Government Code section 19286. Messing was also
retained by CSLEA as chief negotiator in negotiating a memorandum of understanding (MOU)
in the 1990's when a SPPOAC president was on the California Union of Safety Employees
(CAUSE) bargaining team, and Messing obtained information from SPPOAC in negotiating
the MOU. POC joined SPPOAC's motion to disqualify on January 14, 2009.
CSLEA contended that SPPOAC had no standing to bring the motion because the
SPPOAC affiliate was now in trusteeship, and the actual representative of SPPOAC was the
trustee appointed by CSLEA, Ricardo Sanchez (Sanchez).
According to the CSLEA Constitution and Standing Rules, CSLEA's authority resides
in its Board of Directors (CSLEA Board), which is comprised of the elected representative of
each affiliate, and the CSLEA Board elects the President. The CSLEA President is the
corporation's Chief Executive Officer and has "executive, administrative and judicial
authority" over the day-to-day operations of CSLEA and its affiliates. Included in the
(2) "Informed written consent" means the client's or former
client's written agreement to the representation following
written disclosure;
(3) "Written" means any writing as defined in Evidence Code
section 250.
(E) A member shall not, ,vithout the informed written consent of
the client or former client, accept employment adverse to the
client where, by reason of the representation of the client or
former client, the member has obtained confidential information
material to the employment.·
(Emphasis added.)
3

powers is the ability to retain legal counsel whenever necessary for the "provision
of expert legal opinion and/or action."
The Administrative Law Judge (ALJ) denied SPPOAC's motion. When Messing
negotiated on behalf of CSLEA, he represented one client, CS LEA, the Unit 7 exclusive
representative. While SPPOAC may have a seat on the CSLEA Board, it's President does not
retain legal counsel, and the affiliate is not individually represented by Messing. Thus,
SPPOAC was not a "former client" under Rules of Professional Conduct, rule 3-31 0(E).
While Messing represented the SPPOAC Supervisors for purposes of "like pay for like
work," he withdrew from that representation when it announced its support for POC.
Messing' s representation of SPPOAC Supervisors also did not concern collective bargaining
issues as SPPOAC Supervisors are excluded from collective bargaining. This severance
hearing concerns matters within the scope of collective bargaining for Unit 7 rank-and-file
employees. It cannot be found that Messing obtained confidential information from SPPOAC
Supervisors which is relevant to his defense of CSLEA against the severance petition. The two
SPPOAC witnesses, Richard Bergstresser (Bergstresser) and Ryan Gates (Gates), did not
testify about any involvement with the Government Code section 19286 issue.4
After the denial of the motion to disqualify, SPPOAC representatives announced that
they would seek to disqualify Messing by filing a motion in the County of Sacramento
Superior Court. No notice of such filing was received.
The declarations from SPPOAC members Bergstresser and Gates did not include any
reference to communications with Messing or CB&M, or state that "confidential information"
was obtained by Messing in his former representation of SPPOAC Supervisors. Both
Bergstresser and Gates are rank-and-file employees.
4

to the Proposed Unit
On the third day of hearing, February 26, 2009, POC moved to amend the proposed unit
to delete the classes of Museum Security Officer and Supervising Museum Security Officer as
they were not peace officer classes under the Penal Code. Neither the State norCSLEA
objected to the amendment. 	The ALJ granted the amendment pursuant to PERB
Regulation 40240( c). 5
On August 10, 2009, the same date its reply brief was filed, POC requested to delete the
class of Coordinator (Fire and Rescue Services) from the proposed unit pursuant to PERB
Regulation 40240(c), relying on a list of peace officers provided by Rodrigues which included
the Coordinator (Fire and Rescue Services) class, in March/April 2008. 	CSLEA opposed the
motion on the ground that the motion was filed on the same day that the replybrief was due
and POC had ample opportunity to delete the class because it discovered the class was non
sworn on March 24, 2009, during William Bondshu's testimony. CSLEA argued that POC
should not be rewarded for its conduct.
PERB Regulation 40240(c) provides:
Amendments to correct technical errors, add or delete job
classifications or positions from a party's proposed unit which are
requested after the issuance of the notice of hearing are subject to
approval by the hearing officer. 	The hearing officer may grant
the requested amendment, so long as it will not serve to unduly
impede the hearing, and provided that sufficient proof of support
is evidenced to support any request for addition of job
classifications ....
(Emphasis added).
In State of California (Department of Personnel Administration) (1989) 	Decision
No. 773-S (CSPOAICAUSE), PERB analyzed Regulation 40240(c):
5 PERB regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.
5

fact that a severance petition may be amended during a
hearing provides for some flexibility based upon the evidence
produced at the hearing and should avoid, in most cases, the
necessity
of
dismissing a severance petition based solely on the
erroneous inclusion or exclusion
of
a few positions or
classifications.
(CSPOAICAUSE, supra, PERB Decision No. 773-S,
p.
14, fn.
8;
emphasis added.)
Under PERB Regulation 40240(
c)
and CSPOA/CA USE, supra, PERB Decision
No. 773-S, the Board encourages flexibility in its amendment process rather than the harsh
result
of
dismissing a petition based upon an error. Therefore the class
of
Coordinator (Fire
and Rescue Services) is deleted from the proposed unit.
Sealing
of
Transcripts/Exhibits from Public Inspection
On the third and fourth day
of
hearing (February 26 and 27, 2009), POC presented
testimony from a CSLEA peace officer and member who complained about CSLEA's
representation in her complaint(s) against other peace officer(s). All parties agreed that
because
of
the peace officer(s)' privacy, the testimony and the exhibits surrounding the
testimony should be sealed from public inspection. The ALJ therefore sealed portions
of
the
February 26 and 27, 2009 transcripts as well as Petitioner's Exhibit T and Exclusive
Representative's Exhibits I and J pursuant to Government Code section 11425.40 and Penal
Code sections 832.7 and 832.8. (Copley Press, Inc.
v.
Superior Court (2006) 39 Cal.4th 1272
and Berkeley Police Assn.
v.
City
of
Berkeley (2008) 167 Cal.App.4th 385.)
Request to Take Official Notice
of
Amended Version
of
Senate Bill 839
On July 20, 2009, POC requested PERB to take official notice of a document obtained
from the California State Archives concerning Senate Bill 839 (Stats. 1977, ch. 1159)6 which
included Government Code section 3521.7, a provision regarding law enforcement units. The
This legislation was known as the State Employer-Employee Relations Act (SEERA).
6

is a September 6, 1977 amended version of the bill with typewritten summations of
parts of the legislation in capital letters. Next to the proposed legislation for Government Code
section 3521.7 was:
GEORGE BROWN ACT LANGUAGE. WE ALLOW
SEPARATE LAW ENFORCEMENT UNITS. DO NOT
REQUIRE THEM TO BE MEMBER OF SEPARATE
ORGANIZATION.
(Capitalization and underlining included in original.)
A POC declaration states that the document contained "[ e]xcerpts from the contents of
the legislative bill file of California Senator Ralph C. Dills for Senate Bill 839 in year 1977,
consisting of the Legislative Counsel's Digest (25 pages)." The "Legislative Counsel's
Digest" of the September 6, 1977 version of the bill did not mention this language. CS LEA
opposed the request for official notice as POC had ample opportunity to submit the document
and it was incomplete. Official notice is not taken as it cannot be determined whether the
Legislative Counsel prepared these summary statements. Official notice of the Brown Act, the
predecessor labor relations statute, which included a section concerning peace officer
employee organizations, is taken.7
FINDINGS OF FACT
History of Unit 7
In Unit Determinationfor the State of California (1979) PERB Decision No. 110-S
(Unit Determination), PERB created 20 state bargaining units, including Unit 7 (Protective
Services and Public Safety Unit). Prior to deciding the composition of Unit 7, PERB
7 The Brown Act section covering peace officer employee organizations was former
Government Code section 3535. (Stats. 1971, ch. 254, § 6, p. 405.) This section was repealed
by SEERA (Stats. 1977, ch. 1159). SEERA was later renamed the Ralph C. Dills Act (Dills
Act) (Stats. 1986, ch. 103). (The Dills Act is codified at Gov. Code,§ 3512 et seq.)
7

Unit 5 (Highway Patrol) and Unit 6 (Corrections) containing mostly peace officer
employees. 8 The Unit 7 determination provided:
The protective services and public safety unit is composed of
269 classifications including approximately 5,700 employees who
provide various regulatory, law enforcement, and public safety
and protection services. The activities performed by the
employees in this unit include protecting state land and buildings,
furnishing emergency services, issuing licenses or permits,
arresting individuals violating penal or administrative laws, and
protecting the public from various fraudulent practices and
schemes. It is common for a single classification of employees to
have responsibilities in several of these areas of activity. For
example, fish and game wardens perform almost all of the above
functions.
Employment classes within this unit include special agents
employed by the Department of Justice, state police, state park
rangers, various categories of persons involved in the provision of
emergency services, fish and game personnel, security officers,
intelligence and investigative personnel, as well as various
inspectors and examiners. This unit also includes those fire
service personnel not included in the firefighting unit. The
performance of the job functions of these employees involves, to
varying degrees, an element of personal danger to those providing
the services. It is common for state park rangers, fish and game
personnel, state police, fire personnel, and various other
inspectors and investigators included in this unit to provide
mutual aid and assistance under various circumstances.
Typically, the employees included in this unit perform their
respective job functions away from an office environment and are
frequently required to travel. Vlhile the on-the-job training, work
experience, and general qualifications of many of the
classifications included in this unit vary, several classifications
receive common training, such as that provided under the Peace
Officers Standards Training Program which includes instruction
in the rules of evidence, firearms, citation procedures, and the
laws of arrest and detention.
Employees in this unit share common concerns including hours of
work, uniform allowance, holiday pay, scheduling and days off,
The only non-peace officer class now in Unit 5 is the Highway Patrol Cadet. 	The only
other classification in the Unit is Officer, California Highway Patrol (CHP). The only non
peace officer class in Unit 6 is the Parole Service Associate.
8

equipment and procedures, standby pay and compensation
for court appearances, vacation scheduling, mileage allowances,
special health insurance and retirement benefits, and physical
examinations.
Employees included in this unit have a mixed history of
representation. While organizations such as the California State
Police Association, the California Fish and Game Wardens'
Protective Association, the Fire Marshals Local S-9, and the
Association of Criminalists-California Department of Justice
have represented their respective occupational classifications in
the meet and confer process under the George Brown Act
(sec. 3525 et seq.), many employees represented by these
organizations have at the same time been members of other
associations or organizations. This historical intermixture of
representation leads the Board to conclude that past patterns of
representation should be given little weight here. All of the other
aforementioned common factors serve to establish a strong
community of interest among the employees included in this unit
which unites them for purposes of meeting and conferring.
(Unit Determination, supra, PERB Decision No. 110-S, pp. 29-31; emphasis added.)
After formulating Unit 7, PERB configured Unit 8 (Firefighter). Three classes in that
unit, Forester I (Nonsupervisory), Fire Captain, and Battalion Chief, have employees who are
peace officers.9
After establishing Unit 7, a representation election was held. On July 13, 1981, the
Coalition of Associations and Unions of State Employees, Peace Officers Research
Association of California (PORAC) became the exclusive representative of Unit 7. 10 On
March 3, 1983, PERB acknowledged that the Coalition of Associations and Unions of State
Employees changed its name to the California Union of Safety Employees (CAUSE). CAUSE
The fire captain and the battalion chief classes contain peace officers and non-peace
officers.
10 Official notice of the PERB Unit 7 file was taken.
9

its name again to the California Statewide Law Enforcement Association
11
(CSLEA)
which PERB acknowledged on April 26, 2007.
A number
of
classes have moved in and out
of
the unit since the original PERB unit
determination decision: Deputy Labor Commissioner I transferred from Unit 2 to Unit 7
on May
1,
1985; Firefighter (Correctional Institution) transferred from Unit 7 to Unit 6 on
June
1,
1986; Weights and Measures Technician I and II were transferred from Unit
11
to
Unit 7 on July
7,
1989; California State Police Officers and Sergeants were merged into the
CHP and deleted as separate classes on July
1,
1995; 12 and Examiner in Barbering,
Cosmetology Examiner
I,
Associate Insurance Compliance Officer, Insurance Compliance
Officer and Senior Insurance Compliance Officer (Specialist) were transferred from Unit 7 to
Unit 1 on November 27, 2007.
Unit 7 has had two decertification elections. On May 2, 1991, CAUSE was challenged
by California State Safety Employees Council/California State Peace Officers
Association/Laborers' International Union
of
North America and a rerun
of
that election was
held on August 11, 1993. On November 21, 2005, CAUSE was challenged by Teamsters
Local 228. CAUSE won all
of
these elections.
A previous severance petition in Unit 7 resulted in a PERB decision. (CSPOA/CAUSE,
supra, PERB Decision No. 773-S). In that case, the California State Peace Officers
Association (CSPOA) sought to sever a group
of
uniformed peace officers who patrolled a set
geographic region.
13
PERB declined to exercise its statutory discretion to designate "law
At one time, CSLEA stood for CAUSE Statewide Law Enforcement Association.
12
State
of
California (Department
of
Personnel Administration) (1996) PERB Decision
No. 1145-S, warning letter at p. 4.
13
That proposed unit included some of the classifications which are included in the
proposed unit in this case including: Fish and Game Lieutenant (Specialist); Fish and Game

positions pursuant to Dills Act section 3521.7 as the bargaining history did not
justify a departure from the initial unit determination. CSPOA failed to present convincing
evidence that the proposed unit had not been adequately represented by CAUSE during
negotiations, nor were the interests of these proposed unit's employees "trampled upon or
ignored." Instead, the relationship between CAUSE and DPA was stable and had "produced
successful agreements for Unit 7 over the last several years." (CSPOAICAUSE, supra, PERB
Decision No. 773-S, p. 16.) Secondly, PERB found the proposed unit to be underinclusive as
it excluded "large numbers of classifications that we find would fit within the statutory
definition of' having duties consisting primarily of the enforcement of state laws."' (Id. at
p. 16.)
In CSPOAICAUSE, supra, PERB Decision No. 773-S, PERB adopted the ALJ's
proposed decision findings of fact and conclusions of law. Specifically, the ALJ found:
The bargaining history between CAUSE and the DPA also
supports the dismissal of the severance petition. Almost all large
bargaining units have some diversity of interests. Unit 7, when it
was created by the Board, was no exception. The record
indicates[,] however, that the exclusive representative took
specific organizational steps to accommodate pre-existing
differences. It organized special sub-units to insure
representation of the individual concerns of all unit employees.
Although no one group of employees could expect to achieve all
its bargaining goals, issues of primary concern to the uniformed
employees' sub-unit were addressed in negotiations.
There has been no showing that the interests of the petitioned-for
employees have been trampled upon or ignored, or that their
representational rights have been abrogated because of the
existing unit structure. What emerges instead is a picture of a
stable bargaining relationship. Since the unit was established
successful agreements have negotiated in 1982, 1983, 1984,
1985 and 1987. Such stability is an important factor and should
Warden; Hospital Police Officer; Security Officer I, Department of Justice; Sergeant, State
Fair Police; State Fair Police Officer; State Fair Police Officer (Seasonal); State Park Peace
Officer (Lifeguard); State Park Peace Officer (Ranger); and Warden-Pilot, Department of Fish
and Game.
11

be disturbed lightly. Livermore Valley Joint Unified School
District (1981) PERB Decision No. 165.
(CSPOA/CAUSE, supra, PERB Decision No. 773-S, adopted proposed decision at pp. 16-17;
emphasis added.)
The following peace officer classes have been created and added to Unit 7 since the
CSPOA/CA USE decision: 	Fraud Investigator, Department
of
Insurance (DOI) (1990); Senior
Investigator, Department
of
Consumer Affairs (DCA) (1991); Peace Officer
I,
Developmental
Center (DDS) (1994); Investigation Specialist II (Technical), Franchise Tax Board (FTB)
(1994); Special Investigator
I,
Department
of
Mental Health and Developmental Services
(DMH and DDS) (1995); Senior Special Investigator, DMH and DDS (1995); Investigator,
Department
of
Motor Vehicles (DMV) (1999); Fraud Investigator, Department
of
Health
Services (DHS) (2000); Criminal Investigator, Employment Development Department (EDD)
(2000); and Criminal Investigator, Department
of
Toxic Substances Control (DTSC) (2000).
Additionally, in 2001, the Unit 7 series specification
of
Licensing Representative I and
II, Alcoholic Beverage Control (ABC), non-peace officer class, was established, and the series
specification of Investigator I and II, ABC, peace officer class, was revised so that licensing
duties would be primarily assigned to the licensing representatives, and the investigators could
concentrate on criminal enforcement.
Proposed Unit for POC's Severance Petition
After the amendments, the proposed unit
of
53
classes sought to be severed by POC
were:
Arson and Bomb Investigator
Arson and Bomb Investigator Assistant
Associate Corporations Investigator
Captain Firefighter/Security Officer
Coordinator (Law Enforcement), Office of Emergency Services
Corporations Investigator
Criminal Investigator, DTSC
12

Investigator, EDD
Deputy State Fire Marshal
Deputy State Fire Marshal III (Specialist)
District Representative I, Division of Codes and Standards
District Representative II, Division of Codes and Standards
Enforcement Representative I, Contractors State License Board (CSLB)
Enforcement Representative II, CSLB
Firefighter/Security Officer
Fire Service Training Specialist
Fire Service Training Specialist III
Fish and Game Lieutenant (Specialist)
Fish and Game Warden
Food and Drug Investigator
Food and Drug Program Specialist
Fraud Investigator, DHS
Fraud Investigator, DOI
Hospital Police Officer
Investigation Specialist I, FTB
Investigation Specialist II (Technical), FTB
Investigator Assistant
Investigator I, ABC
Investigator II, ABC
Investigator Trainee, ABC
Investigator, DCA
Investigator, DMV
Labor Standards Investigator
Lottery Agent
Peace Officer I, DDS
Pipeline Safety Engineer
Security Officer I, Department of Justice (DOJ)
Senior Food and Drug Investigator
Senior Investigator, DCA
Senior Special Investigator, DMH and DDS
Senior Special Investigator
Sergeant, State Fair Police
Special Agent Supervisor, DOJ
Special Agent Trainee, DOJ
Special Agent, DOJ
Special Investigator I
Special Investigator I, DMH and DDS
State Fair Police Officer
State Fair Police Officer (Seasonal)
State Fire Marshal Trainee
State Park Peace Officer (Lifeguard)
State Park Peace Officer (Ranger)
Warden-Pilot, Department of Fish and Game (DFG)
13

CSLEA Structure
CSLEA's current structure has 19 affiliates divided into three units: Unit A, Unit Band
Unit C. These affiliates are:
Unit A
Association of Motor Vehicles Investigators of California
(AMVIC)
Association of Special Agents, Department of Justice (ASA-DOJ)
California Association of Criminal Investigators (CACI)
California Food and Drug Investigators (CAFDI)
California Association of Fraud Investigators (CAFI)
California Association of State Investigators, Alcoholic Beverage
Control (CASI)
California Fish & Game Warden Association (CFGWA)
Hospital Police Association of California (HP AC)
State Park Peace Officer Association (SPPOAC)
UnitB
Association of Deputy Commissioners (ADC)
Association of Motor Carrier Operations Specialists (AMCOS)
California Association of Regulatory Investigators and Inspectors
(CARII)
California Organization of Licensing Registration Examiners
(COLRE)
Fire Marshals and Emergency Services Association (FMESA)
Unit C
Association of Conservation Employees (ACE)
Association of Criminalists, Department of Justice (AC-DOJ)
California Highway Patrol Public Safety Dispatcher Association
(CHP-PSDA)
State Employed Fire Fighters Association (SEFF A)
California Association of Law Enforcement Employees (CALEE)
Each affiliate, with the approval of the CS LEA Board, can change the classes in it. The
majority of Unit 7 peace officers are members of the Unit A affiliates, but peace officers are
also in affiliates in Unit B (ADC, CARII and FMESA) and Unit C (SEFF A and CALEE).
14

History since the CSPOAICA USE Decision
CSLEA and the State have negotiated MOU's in 1988, 1992, 1999, 2001, 2005 and 2006.
As of the hearing, the following salary comparisons can be made between Units 7, 6 and 5: 14
Unit 7 (CSLEA) Unit 6 (CCPOA) Unit 5 (CARP)
Spec. Agent Supervisor, DOJ
$5,925-$8,069
Parole Agent II, Adult/Youth
$7,020-$8,527
Officer, CHP
$5 ,680-$6,90 I
Special Agent, DOJ
$5,397-$7,341
Parole Agent I, Adult/Youth
$6,400-$7, 772
Investigation Spec. II, FTB
$5,753-$7,293
Correctional Officer
Youth Correctional Officer
$5,055-$6, 144
Investigation Spec. I, FTB
$5,239-$6,637
Arson and Bomb Investigator
Dist. Rep. II, Div. Codes
$5,000-$6,332
Crim. Investigator, EDD
Crim. Investigator, DTSC
Fraud Investigator, DHS
Investigator, DMV
Investigator II, ABC
Senior Special Investigator
Senior Investigator, DCA
$4,888-$6, 194
Enforcement Rep. II, CSLB
$4, 7 48--$6,020
Lottery Agent
$4,677-$5,914
Fish and Game Warden
$4,271-$5,642
Fraud Investigator, DOI
Investigator I, ABC
Investigator, DCA
Sp. Investigator I
Sp. Investigator I, DMH/DDS
<tAA,A<t,{.;'11 ...v,,, ...r,--4-1.,.1,v..11-
Enforcement Rep. I, CSLB
$4,321-$5,469
State Park Peace Officer
(Ranger)(Lifeguard)
$3,981-$5,265
State Fair Police Officer
$3, 797-$4,578
Hospital Police Officer
Peace Officer I, DDS
$3,455-$4,360
The highest salary range of each classification is used for case of comparison. Not
every CSLEA and California Correctional Peace Officer Association (CCPOA) classification
is listed. CCPOA is the exclusive representative of Unit 6 and the California Association of
Highway Patrolmen (CAHP) is the exclusive representative of Unit 5.
15

of the hearing, the following peace officer benefits among the units were:
Unit 7 (CSLEA) 	Unit 6 (CCPOA) 	Unit 5 (CAHP)
Retirement formula
3% at 50 years 15
Retirement formula
3% at 50 years
Retirement formula
3% at 50 years
Longevity Pay
17 years - 1% of base salary
19 years - 2% of base salary
20 years - 3% of base salary
21 years - 4% of base salary
22 years - 5% of base salary
25 years - 7% of base salary
Longevity Pay
17 years - 1% of base salary
18 years - 2% of base salary
19 years - 3% of base salary
20 years - 4% of base salary
21 years - 5% of base salary
22 years - 6% of base salary
25 years - 8% of base salary
Longevity Pay
18 years - 2% of base salary
19 years-3% of base salary
20 years - 4% of base salary
21 years - 5% of base salary
22 years - 6% of base salary
25 years - 8% of base salary
Bilingual Pay Differential
$100 per month
Bilingual/Sign Language Pay
$100 per month.
Bilingual Pay Differential
$100 per month
Educational Incentive Pay
1) Intermediate Post Certificate
or AA Degree16
$50 a month
2) Advanced POST Certificate
or BA Degree17
$100 a month
Educational Incentive Pay
AA Degree or BA Degree
$100 or 2.2% of top step
Correctional Officer salary
Educational Incentive Pay
1) Intermediate Post Certificate
or AA Degree
2.5% of base salary or no
less than $120 a month
2) Advanced POST Certificate
or BA Degree
5% of base salary or no less
than $240 a month
Night Shift Differential
State Park Ranger
Security Officer I
State Security Officer
Hospital Peace Officer
$.50 per hour
Night Shift Differential/
Weekend Shift Differential
(all classes, except Parole
Agent)
$.50 per hour night shift
$.65 per hour weekend shift
Night Shift Pay
Swing Shift -- $1.00 per hour
Graveyard -- $1.50 per hour
Uniform Allowance
$640/year
Boot allowance -- Depending on
class no cost for initial purchase
of boots
Uniform Allowance
$530/year
Uniform Allowance
Up to $920/year
$25 per month for maintenance
and cleaning
Boot allowance (motorcycle)
Initial $255, Subsequent $85
15 In June 2002, Governor Gray Davis signed Senate Bill No. 183 (2002-2003 Reg.
Sess.) which gave peace officers/firefighters in Unit 7 a 3 percent at age 50 formula for those
who retired after July 1, 2004. The same bill gave the same retirement benefit to Unit 6 peace
officer/firefighters, except that it was not effective until January 1, 2006.
16 Associate of Arts degree.
17 Bachelor of Arts degree.
16

7 (CSLEA) 	Unit 6 (CCPOA) 	Unit 5 (CAHP)
Physical Fitness Incentive
$65 per month
Physical Fitness Incentive
Less than 60 months service
$65 per month
60 or more months service
$130 per month
Physical Fitness Incentive
Less than 60 months service
$65 per month
60 or more months service
$130 per month
Canine Differential for
Maintenance and Care
DPR Peace officers
$189 per month
DMH Peace Officer
5% per month
Canine Expenses Reimbursed
and allowing 16 hours for
maintenance of dog
Canine Pay for Maintenance and
Care of Dog
$156.65 per month
Training Officer Differential
DOJ Special Agent or Special
Agent Supervisor
DFG classes
DPR State Park Rangers
DOI Fraud Investigator
One step18 above pay rate
DPR Cadet FTO for Peace
Officers
Two step above pay rate
Field Training Officer Pay
5% of daily rate pay
Special Operations Unit
Differential - DFG
One step above their hourly rate
Investigator Pay (assigned
Vehicle Theft Investigator or
Fraud Investigator)
$50 per month
Motorcycle/ ATV Pay
One step above the monthly
equivalent hour rate
Motorcycle Pay
4% of base salary or no less than
$175 per month
Task Force Commander
DOJ Special Agent Supervisor
$250 per pay period
Officer in Charge Pay
5% of the daily rate of base pay
Recruitment and Retention
Differential for Classes
State Park Peace Officer
(Ranger and Lifeguard)
Warden-Pilot DFG
Fish and Game Patrol Lieutenant
(Specialist)
Fish and Game Warden
$175 per month
Recruitment Incentive Housing
Stipend
San Quentin State Prison
Correctional Training Facility
Salinas Valiey State Prison
$175 a month
One step is a 5 percent increase.
17

7 (CSLEA) 	Unit 6 (CCPOA) 	Unit 5 (CAHP)
Recruitment and Retention
Differential, DPR and DFG for
Relocation to Specific
Geographic Areas
Warden-Pilot
Fish and Game Patrol Lt.
Up to
$3
50 per month
Warden, Range B
State Park Peace Officer
(Ranger/Lifeguard) Range B
Lifeguard, Range B
Up to $300 per month
Warden, Range A
State Park Peace Officer
(Ranger/Lifeguard) Range A
Up to $220 per month
Recruitment and Retention
Differential (Geographic for
Desert Prisons) for A venal,
Ironwood, Chuckawalla Valley,
Calipatria and Centinela State
Prison
$2,400 annual
Flight Time Differential (Pilot)
Special Agent, Special Agent
Supervisor, DPR peace officer
Two steps for each pay period
Flight Differential
Approx. 11.8%
Mounted Patrol (Cal Expo)
$20 per day
Arduous Pay Differential (for
FLSA exempt employees for up
to four months per fiscal year)
Flight Pay (flying on
noncommercial aircraft
of
fours
hours per month)
$165 or 3.6%
of
top step for
Correctional Officer salary
whichever is greater
Paramedic Pay (assigned full
time to perform duties
of
paramedic)
$50 per month
I. 	Alleged Bargaining Conflict(s) between Peace Officers and Non-Peace Officers
POC contends that there is an actual or inherent conflict that exists in representing
peace officer and non-peace officer employees and cites a number of bargaining incidents as
support.
a. 	1998 Negotiations with Governor Wilson
Pete Wilson was Governor of the State of California from 1991 to 1998. Craig Brown
(Brown) was Governor Wilson's Director of Finance from March 1996 to December 30, 1998.
18

Barcelona (Barcelona) became President of CAUSE in 1998. John Miller (Miller) was
the CAUSE Vice-President and Director of Governmental Relations.
In 1998, Governor Wilson attempted to negotiate a number of civil service reforms with
all exclusive representatives, including pay for performance19 (performance salary adjustments
(PSA's)); limited hearings for minor disciplinary actions (suspensions of less than five days);
no appeals of official reprimands or rejections during probation; longer probationary periods;
limited appeal rights in layoffs and lesser notice periods before layoffs; restrictions on DPA
statutory appeals hearings; and broadbanding (lesser number of civil service classes with
broader definitions).
CAHP and CCPOA had already accepted tentative agreements including a five percent
increase in salary, and some civil service reforms. CAHP accepted limited hearings for minor
discipline and PSA's, and CCPOA accepted PSA's and restrictions on appeals from rejections
during probation.
In August 1998, near the end of the legislative session, Brown and Miller spoke about
CAUSE and the State reaching a tentative agreement. Brown stated that the Governor would
offer CAUSE a five percent increase in salary for peace officer classes and three percent for
non-peace officer classes if it agreed to the Governor's proposed civil service reforms.
According to Barcelona and Miller, CAUSE was amenable to the salary increases,
including the differential between peace officer and non-peace officer classes, but was against
the Governor's civil service reforms which they believed were against the interests of its
Pay for performance was proposed to replace the merit salary adjustment (MSA)
criteria set forth in California Code of Regulations, title 2, section 599 .683. Employees
received a step increase in salary of 5 percent if the supervisor did not take an affirmative
action to deny the MSA. MSA's were viewed as automatic increases in salary. Pay for
performance increases would be granted only after the employee demonstrated successful
performance in the job.
19

Barcelona and Miller took the offer to the CAUSE Board which unanimously
rejected the offer because of the reforms. The CFGWA and SPPOAC affiliates voted against
the offer.
Legislative Advocate Patricia Hunter (Hunter) was contacted by CAUSE to assist in
negotiating the salary component of a tentative agreement near the end of the 1998 legislative
session. Hunter testified she telephoned Jeff Randle (Randle) of the Governor's staff to
discuss the issue.20 Although Hunter's memory about some of the details was vague,21 she
remembered that the Governor had offered a pay raise for non-peace officers and ahigher rate
for the peace officers. It was the same proposal for peace officers that GovernorWilson had
offered the CAHP and CCPOA, which also included the civil service reforms. Hunter
informed Miller of the offer, and Miller told her that they would not take the offerbecause it
divided the members. Contrary to Hunter, Barcelona and Miller testified that they didnot take
the offer because of the civil service reforms.
After the close of the 1998 legislative session, DPA and CAUSE met on
October 2, 1998, to attempt to reach an agreement. CAUSE and DPA agreed to a modified
version of the pay for performance proposal and the minor discipline hearing reforms, but DP A
only offered the modified minor discipline hearing reforms to peace officers and firefighters.
DPA insisted that CAUSE agree to all of the civil service reforms to get the salary increases.
No agreement was reached. CAUSE waited until the next Governor to begin negotiations.
Randle does not remember speaking with Hunter about these issues and left
employment with Governor Wilson in April of 1998, before Hunter testified she telephoned
Randle.
21 Hunter admitted that she was not familiar with all the negotiations as shewas only
asked to make a telephone call about the salary component.
20

A document entitled, "Contract Discussion Points" in the 1999 DP A Bargaining Notes
CAUSE (Unit 7) is the only public safety unit without an
agreement. CAHP signed an agreement during the last week of
Wilson's administration, with Forestry and CCPOA signing last
October. CAHP had accepted Wilson's reform proposals in 1995
when it obtained a contract and the other units did not. Forestry
and CCPOA accepted some modified versions of the reforms.
CAUSE did not accept the reforms and did not get a contract.
CAUSE offered to accept the same modified versions as Forestry
and CCPOA, but still could not get a contract.
(Emphasis added.)
b. 	Pay parity with CHP Officers
Gray Davis became Governor in January 1999. After Brown retired as Director of
Finance, he joined a governmental relations firm. 	CAUSE eventually retained Brown as its
primary legislative advocate.
In late 2001, in an unpublished sideletter, CCPOA negotiated a pay parity methodology
with the State where the total compensation package for Unit 6 would be $666 less than the
total compensation package received by CHP officers. The MOU covered the time period of
2002 to July 2006. The MOU bill (Sen. Bill No. 65 (2001-2002 Reg. Sess.) § 2) was passed by
the Legislature and signed by Governor Davis on January 15, 2002. (Stats. 2002, ch. 1.)
In 2003, CAUSE negotiated a tentative agreement with Governor Davis which had a
salary component of the weighted total compensation average of five of CAUSE's peace
officer classes to be within $777 of the total compensation received by CHP officers. 	The
entire CAUSE Board was in favor of this pay parity. The tentative agreement was forwarded
to the Legislature for approval (Sen. Bill No. 348 (2003-2004 Reg. Sess.)). As the legislative
session was ending, the recall movement against Governor Davis gained momentum, and
legislative support for the CAUSE MOU bill began to wane for fear that they would be
21
A document entitled, "Contract Discussion Points" in the 1999 DPA Bargaining Notes

something connected with Governor Davis. During one of the last days of the
legislative session, Barcelona was waiting in the hallway of the Capitol to obtain some
indication of how the MOU bill was faring from Senate Pro Tern John Burton (Senator
Burton). During a break, Senator Burton stepped into the hall, looked at Barcelona, and turned
his thumb downward. As a result, the CAUSE leadership decided that they would not bring
the MOU bill to the floor and risk a "no" vote. CAUSE also feared that the next Governor
would believe that CAUSE was forcing a Governor Davis MOU down his throat. After
Governor Arnold Schwarzenegger was elected, Brown approached him about the MOU pay
parity methodology. The Governor was totally opposed to it.
c. Fish and Game Warden Recruitment and Retention
The CFGWA affiliate has been concerned about the ability of a decreasing number of
wardens to serve the growing population of California and protect its natural resources. DFG
had not been able to recruit wardens because of the inadequate salary level, when compared to
CHP officers.22
In 2003, DFG eliminated 50 warden positions because of budgetary cuts. This ieft
approximately 231 wardens to enforce laws to protect California's natural resources. In 2005,
the Legislature approved the addition of 40 warden positions, but Governor Schwarzenegger
eliminated this augmentation, leaving 203 wardens. CSLEA successfully negotiated a
successor MOU from July 2005 to June 2006 which gave its peace officer/firefighter
employees a five percent step increase in January 2007 while giving selected non-peace officer
classes a 5 percent step increase 2006 (Program Representatives, Criminalists, Photo
Electronic Specialists, Latent Print Analysts and Questioned Document Examiners) and a
22 The CHP officer has been the highest paid uniformed peace officer employed by the
State and has been the benchmark for all other uniformed peace officers to achieve pay parity.
22

percent step increase in July 2005 for CHP Public Safety Dispatchers and Communication
Operators. CS LEA was not able to get a better salary package because of the economy, but it
obtained the State's informal agreement to reopen the 2005 agreement if the state's fiscal
condition improved. The tentative agreement was ratified by 90 percent of CSLEA's
membership.
In 2006, Brown approached DPA Director David Gilb (Gilb) about reopening the 2005
agreement based upon the state's improved fiscal condition. At the same time, the Attorney
General's Office approached DPA to discuss compensation issues concerning its employees.
In early 2006, CFGW A activists Jerry Karnow (Karnow), Bob Orange (Orange) and
Jake Bushey (Bushey) sought to inform the Legislature during deliberations over the
2006/2007 Budget Act of the plight of the wardens and the protection of California's natural
resources. Karnow, Orange and Bushey handed out informational documents to the
Legislature and testified at budgetary hearings concerning DFG. Karnow and Orange also met
with the Governor's Chief of Staff Susan Kennedy, DP A, and the Department of Finance on
these issues.
Karnow, Orange and Bushey were successful in their efforts. The Legislature approved
a $30 million augmentation to the DFG budget to address recruitment and retention issues for
DFG wardens. Kamow understood that the amount approved would be equivalent to a
43 percent salary increase for the wardens which would provide parity with the CHP officers.
During the Budget Joint Conference Committee meetings, the Governor's office did not
support augmentation to the DFG budget unless the Legislature funds available in
the Budget's employee compensation item. Brown, familiar with this process as the former
Director of Finance, believed the augmentation to the DFG budget would be eliminated by the
23

as it undermined his authority to collectively bargain employee compensation.23 The
Budget Joint Conference Committee moved the augmentation to the employee compensation
item.
In an August 14, 2006 letter to DP A Director Gilb, three State Senators on the Budget
Joint Conference Committee stated that the funds were "to address the recruitment and
retention issues in employee compensation" and that DPA needed to "describe the problem
that the funds aim to address and identify the departments to which the funds will be
allocated." The letter strongly urged DPA to "devote the budget monies to resolving the issues
of
game warden retention, recruitment and compensation." At the same time, Brown was
discussing the augmentation with DP A, and DP A stated it would use the money to provide
additional increases to overcome recruitment and retention problems caused by inadequate
compensat10n.	· 	24
When CS LEA met and conferred regarding the budgeted money, DP A emphasized that
the money would go to solve recruitment and retention issues. CFGWA President Joe Mello
was at the CSLEA bargaining table, and did not voice any objection to DP A's compensation
offer made to the peace officers.
A tentative agreement was reached in August 2006. The following additional salary
increases ,vere provided for peace officer/firefighter classes:
Brown had never recalled seeing an augmentation survive the budget process.
24 CS LEA General Manager/Chief Counsel Kasey Clark (Clark) testified that under
Governor Schwarzenegger, DP A used a market-driven methodology in determining the amount
of salary a class should receive based upon evidence of ongoing recruitment and retention
problems despite the agency's best efforts.
24

July 2006 	July 2007 	July 2008 	July 2009 	Total
Special Agent DOJ
State Park Peace Officer
(Ranger)
Fish and Game Warden
3.5% Cost of
Living
Adjustment
6.5% Equity
Adjustment
5% Step
Increase
5% Step
Increase
2Q%L)
All other Peace
Officer/Firefighter
Classes
3.5% Cost of
Living
Adjustment
2-4% Cost of
Living
Adjustment
5% Step
Increase
10.5%
to
12.5%
Non-peace officer/firefighter classes such as the CHP Public Safety Dispatcher and
Communications Operator received a 25 percent salary increase;26 the Criminalist, Photo
Electronic Specialist, Latent Print Analyst and Questioned Document Examiner received a
10.5 percent to 12.5 percent increase; the Program Representatives received a 5.5 percent to
7.5 percent increase and all other non-peace officer/firefighter classes received a 5.5 percent to
7.5 percent increase.
Rodrigues, who has been assigned to Unit 7 from November 2005, testified that in the
negotiations, CSLEA did not trade money from sworn to non-sworn classes. Barcelona stated
that CSLEA always negotiated two separate deals in every agreement, and pay and benefits for
the sworn employees had always been greater than the non-sworn. Barcelona believes that
CSLEA has represented unit members well, although it has not done as well as CAHP. 	CAHP
is the most visible law enforcement state agency association and had unmatched access to the
Governor as its members provided protection for him, while CSLEA represents a diverse
number of small peace officer groups competing for budget money to perform various law
enforcement functions, according to Barcelona.
) These increases would not be fully realized until the employees attained the top step
of their salary range for the class.
26 CHP and the Department of Parks and Recreation (DPR) had difficulty retaining staff
dispatchers/communications operators (dispatchers) as dispatchers obtained higher paid
positions with local agencies after training with the CHP and DPR.
25

CFGWA's Further Efforts to Achieve Pay Parity
Karnow, Orange, and Bushey did not believe that CSLEA's 2006/2007 budget
negotiations solved the warden recruitment and retention problems, so they began a second
educational campaign for the Legislature in 2007. On February 23, 2007, Senators Patricia A.
Wiggins and David Cogdill introduced Senate Bill 695 stating that recent pay increases were
insufficient to ease recruitment and retention problems for wardens, which could be solved
only by paying wardens comparable to other state law enforcement agencies. On March 6,
2007, Barcelona wrote a letter to the authors stating that CSLEA opposed the bill unless it
broadened its parity focus to cover all CSLEA-represented public safety personnel. The bill
later linked warden's salaries with the estimated total compensation average of the sheriff's
departments of five coastal counties. The bill did not pass.27
2. DOJ Special Agents' Salary Disparity
DOJ Special Agents/Special Agent Supervisors expressed concerns that their salaries
are not in parity with CDCR Special Agents and Special Agent Supervisors, classes excluded
from representation. Rodrigues, who represented DOJ labor relations in 1999, testified that the
issue of DOJ and CDCR Special Agent parity came up many times. The Attorney General
recommended that DP A grant DOJ Special Agent salary increases equivalent to the CDCR
Special Agent. The request was forwarded to DPA and was denied.
July 2005, CSLEA representative Messing wrote a letter to DPA Director Gilb
seeking pay parity for DOJ Special Agents Supervisors with CDCR, stating that "like pay"
27 In May 2007, the Legislative Analyst's Office (LAO) issued a report entitled, "Fish
and Game Warden Staffing and Compensation," where it reported the wardens' vacancy rate as
14 percent and acknowledged that other classes within Unit 7 such as DOJ Special Agents,
State Park Peace Officers, ABC Investigators, and DOI Investigators have vacancy rates of
"well over 20 percent." Karnow disputed the 14 percent vacancy rate as it did not include the
50 lost positions in 2003. The LAO also recommended against linking warden pay with CHP
officers.
26

be paid for comparable duties and responsibilities. Rodrigues, now with DP A,
responded that DPA would be conducting its own salary survey on salary inequities.
3. CS LEA Affiliates under Trusteeship
Around October 2007, CSLEA placed both CFGWA and SPPOAC in trusteeship, and
appointed Sanchez as the affiliates' trustee. In February 2008, CSLEA and DPA met to
negotiate a successor MOU. The bargaining team included Clark, one peace officerfrom
CSLEA Unit A and one non-peace officer from Units Band C each. The team reviewed
hundreds of proposals from the membership including those from members of CFGW A and
SPPOAC.28 Sanchez solicited proposals from the two affiliates and arranged for the former
SPPOAC president to attend some negotiating sessions to discuss proposals put forth by State
Park Peace Officers (Rangers/Lifeguards). The former SPPOAC president sentSanchez an
electronic mail (e-mail) thanking him for efforts on behalf of SPPOAC.
4. Converting Non-Peace Officer Positions to Peace Officer Positions
CSLEA has sought to increase salaries and benefits for its members by obtaining peace
officer status for non-peace officer positions. In 1997, CSLEA sponsored legislation
(Stats. 1997, ch. 670, § 1.5) which made FTB investigators peace officers under Penal Code
section 830.3(s). As a result, the classes of FTB Investigation Specialist I and II eventually
received better salaries and a peace officer retirement.
The issue is whether CSLEA provided adequate representation after it placed the
CFGWA and SPPOAC affiliates into trusteeship. Both CSLEA and POC sought to litigate the
appropriateness of the trusteeship, but PERB does not have jurisdiction over internal union
matters (Service Employees International Union, Local 99 (Kimmett) (1979) PERB Decision
No. 106).
27

has two investigator classes: the non-peace officer class, Insurance Investigator,29
investigates applicants for insurance licenses and insurance licensees; the peace officer class,
Fraud Investigator, investigates criminal violations of insurance fraud and white-collar crime.
In 2005, CSLEA sought legislation to obtain peace officer status for Insurance Investigators in
Assembly Bill No. 994 (2005-2006, Reg. Sess.). Peace officer status would make Insurance
Investigator duties comparable to Fraud Investigator duties, and would result in increased
salary and retirement benefits for these employees. The bill was vetoed by Governor
Schwarzenegger.
In August 2006, Barcelona pursued converting the Insurance Investigator to a peace
officer position, and sought support from DOI managers. Barcelona was concerned that he
would not be able to complete the conversion before Insurance Commissioner John Garamendi
left office. In November 2006, Steve Poizner (Poizner) was elected as Insurance
Commissioner. Before Poizner took office, Barcelona met with him to discuss the Insurance
Investigator becoming a peace officer class. While Barcelona was not able to convert the class
to peace officer, in 2007, CSLEA supported legislation sponsored by DOI (Assembly Bill
No. 1401 (2007-2008, Reg. Sess.)) which provided more funds to the DOI fraud unit by
increasing assessments to insurance companies so DOI could hire more Fraud Investigators.
Commissioner Poizner later approved a multi-year transition plan to convert all Insurance
Investigators to Fraud Investigators.
5. Other Representation Provided to Peace Officer Classes
CS LEA cited to numerous instances of its representation of its membership, including
those related to Hospital Peace Officers. When Hospital Police Officers were not allowed to
1. Although Insurance Investigators were not peace officers, they could exercise peace
officer powers of arrest and serve warrants if trained in the exercise of those powers under
Penal Code section 832.
28

guns, CSLEA sponsored legislation which allowed them to have firearms on duty in
2005 (Assem. Bill No. 458 (2005-2006 Reg. Sess.), but it did not become law. CSLEA also
filed a grievance that patrol vehicles be provided for Hospital Police Officers and eight
vehicles were added to the Metropolitan State Hospital automobile fleet. After batons and
pepper spray were prohibited from use by Hospital Police Officers, CSLEA invoked the
grievance/arbitration process which restored them.
Change in Duties of Unit 7 Peace Officers
POC claimed that peace officer positions within Unit 7 have increased their criminal
enforcement duties compared with their regulatory non-peace officer counterparts. While this
change certainly applied to some classes, it was not universal for all Unit 7 peace officer
classes and/or all geographic locations within an individual class.
Warden Karnow testified that 95 percent of his duties relate to criminal enforcement,
although that percentage varies among wardens depending on the location of the worksite.
Some change was caused by the transfer of non-enforcement warden duties to DFG bioiogists.
The Warden Pilot assists in both criminal enforcement and resource preservation/protection
duties.
Depending on the work location and philosophical bent of a State Park Peace Officer
(Ranger), law enforcement duties have increased because they are less rangers while the
number of park visitors is increasing.30 This trend is not department-wide as DPR recently
studied the ranger's duties to determine whether they were enforcement or resource
management oriented. The study showed that DPR embraced ranger as a "generalist" who
must perform both duties.
Rangers employed in the Los Angeles area spend more time on law enforcement
duties than in other areas.
29

State Park Peace Officer (Lifeguard) performs
85
percent law enforcement related
duties during the summer, and the night shift peace officer performs 95 percent law
enforcement duties. Some
of
these peace officers are concerned that their aquatic-related
duties are diminishing.
The DOI Fraud Investigator performs criminal law enforcement duties 100 percent
of
the time. The DOI is now implementing a plan to phase out the non-peace officer Insurance
Investigators and hire Fraud Investigators to use peace officer authority to perform their
enforcement duties.
The ABC Investigator now performs more criminal enforcement duties than previously.
This change began with creation
of
the Licensing Representative I and II series class in 2001 to
absorb administrative licensing duties. ABC investigators now focus more on undercover
enforcement activities. ABC investigators continue to perform a small amount
of
administrative enforcement work.
After a recent reorganization, the DTSC Criminal Investigator performs 100 percent
criminal investigations, and sends civil and administrative investigations to the department's
biologists. The DDS/DMH Special Investigator spends 90 percent
of
the time performing
criminal investigations, and 10 percent performing civil/administrative investigations. The
Corporations Investigator conducts mostly criminal investigations; after the investigation, the
department may decide to pursue the matter civilly or administratively.
No significant changes
of
duties were related by the State Fair Police Officers, the
DMH Hospital Police Officers, and the DDS Peace Officer I's. Much
of
time is spent
monitoring or patrolling activities in the areas
of
their assignments and they address issues
when they arise. Some duties include conducting criminal investigations. No significant
changes as to duties were recounted by DMV Investigators who enforce criminal, civil and
30

laws and regulations other than Supervising Investigators supervise only DMV
Investigators and not non-peace officer DMV Inspectors.
31
Some
of
the classes such as Firefighter/Security Officer (FF/SO) and Captain
Firefighter/Security Officer (CFF/SO) have different duties depending on three work locations:
Department
of
Veterans Affairs (DVA) (Yountville), DPR (San Simeon) and Department
of
Military (DOM) (Camp Roberts). FF/SO's and CFF/SO's with the DPR and DOM are peace
officers, but at DVA they are not. At DPR, the CFF/SO and FF/SO perform 30 percent
security duties with the remainder
of
fire prevention or health and safety duties. At DOM,
since September 11, 2001, the CFF/SO and FF/SO perform 40 percent security duties and
60 percent fire protection duties. The DOM and DPR FF/SO wear firearms and the DV A
FF/SO's do not. The DVA FF/SO perform 100 percent security and law enforcement duties.
The Lottery Agent's emphasis on criminal enforcement depends on work location. A
field agent may perform 75 percent criminal enforcement duties while an agent at Lottery
headquarters would perform substantially less.
Split Classes (Peace Officer/Non-Peace Officer)
As a result
of
reopener negotiations in 2006, certain salary and/or step increases were
targeted specifically for peace officer/firefighter employees. Seven classes receiving these
increases had both peace officers and non-peace officers. As a result, many non-peace officers
received the January 2007 increases which were targeted for peace officer classes.
would not agree to amend the reopener agreement to exclude these non-peace officers from
receiving increases because the agreement specifically listed these classes and was ratified by
the membership. DPA proposed the creation of seven additional classes with a specific non
peace officer designation so the non-peace officers would not receive the January 2008
31
The DMV Inspector is a Unit 7 class.
31

which was designated for peace officers. The State Personnel Board (SPB) approved
DPA's recommendation and created these classes in November 2007. Those split classes were
District Representative I and II, Division of Codes and Standards,
(Class Codes 8960 and 8958)
District Representative I and II, Division of Codes and Standards
(Non-Peace Officer), (Class Codes 8959 and 8961)
Enforcement Representative I and II, Contractors State License
Board, (Class Codes 8793 and 8795)
Enforcement Representative I and II, Contractors State License
Board (Non-Peace Officer), (Class Codes 8791 and 8800)
Investigator Assistant, (Class Code 8554)
Investigator Assistant (Non-Peace Officer), (Class Code 8555)
Special Investigator I, (Class Code 8553)
Special Investigator I (Non-Peace Officer), (Class Code 8563)
Senior Special Investigator, (Class Code 8550)
Senior Special Investigator (Non-Peace Officer), (Class Code
8551)
There are three peace officer and 120 non-peace officer enforcement representatives
working for the DCA Contractor's State Licensing Board (CSLB). The peace officers have the
same duties as non-peace officers except that the peace officers may arrest and serve search
warrants. If a peace officer enforcement representative is not available to make an arrest or
serve a search warrant, the non-peace officer contacts a local police officer or deputy sheriff to
do it.
The District Representative, Division of Codes and Standards class for the Department
of Housing and Community Development (HCD) is a split class. The peace officer district
representatives interview witnesses, write subpoenas, and take administrative action against
those HCD regulates, while the non-peace officers conduct inspections of manufactured homes
and commercial modules and issue notices of correction. Both classes can work together to
investigate the unlicensed sale of manufactured homes.
32

Member Representation
Since Clark came to CSLEA as Chief Counsel in 2004, and later became General
Manager/Chief Counsel, CS LEA staff have transformed from a non-attorney labor
representative staff to an attorney representative staff. These legal representatives in the
headquarters office in Sacramento and the southern office in Westminster represent individual
affiliates.
While some Unit 7 employees may have had issues about CSLEA's timely response to
inquiries before Clark arrived, the prevailing opinion is that CSLEA staff is now more
responsive to the member's inquiries.32
1.
Legal Division Representation
The CSLEA Legal Division represents Unit 7 members in grievances, arbitrations,
investigatory interviews, Skelly3 3 hearings, SPB disciplinary actions, and DPA statutory
appeals. Representation surveys have been sent to those who used the legal services. While
there was criticism, the majority
of
responses indicated that the member was very satisfied
about the quality
of
representation provided. Additionally, witnesses testified about the quality
of
representation and prompt response from CS LEA staff. Among those witnesses was a
SPPOAC member while the affiliate was in trusteeship.
Legal Defense Fund
The CSLEA Legal Defense Fund (LDF) is a "member only" benefit which provides
legal representation to the member in civil and criminal matters arising out
of
the course or
scope
of
employment. It is patterned after the administered by PORAC. The LDF
2 One peace officer complained that she telephoned CSLEA on a Friday in
September/October 2007 and was told that everybody was at training. The phone call was not
returned and the member solved the issue on her own.
33 Skelly
v.
SPB (1975) 15 Cal.3d 194.
33

with panel attorneys experienced in public safety employees issues, and provides
representation on officer-involved shootings and the Public Safety Officers Procedural Bill
of
Rights (POBOR),34 among other things. The majority
of
representation is provided to peace
officers. Representation surveys were also distributed to those represented by a panel attorney
with very positive feedback. The affiliate leadership also received positive comments for the
representation provided by the LDF attorney panel.
One witness testified that CSLEA did not pursue a POBOR action against her
supervisor when notice was not provided before she was asked about one
of
her investigations.
The witness did not ask for a representative at the time
of
the questioning, the merits
of
the
claim were debatable,35 and no subsequent harm incurred. CSLEA authorized this member to
speak to a LDF panel attorney about protesting a subsequent involuntary transfer, but she was
not diligent in doing so. On a different complaint by the same individual, Clark informed her
that it did not represent members in actions against other members, but only defended
members against actions by the employer.
One peace officer member complained that a CSLEA job steward reported that his use
of
the DMV e-mail in an unauthorized fashion when he replied to a CSLEA e-mail that was
sent to his DMV e-mail account. This member asked about CSLEA LDF coverage when the
problem was caused by a CSLEi\. job steward. The member was told that it was a conflict
of
interest issue which would be considered on a case-by-case basis.
34
POBOR is codified at Government Code section 3300 et seq.
35 The witness was an internal affairs investigator who was asked by her supervisor
about a witness statement from one of her interviewees. The question could have easily been
asked by the supervisor in the normal course of his supervisory duties. (Gov. Code,§ 330l(i)
and Steinert
v.
City of Covina (2006) 146 Cal.App.4 th
458.)
34

of
the Proposed Unit
On the third day
of
hearing, February 26, 2009, POC moved to amend the proposed unit
to delete the classes
of
Museum Security Officer (MSO) and Supervising Museum Security
Officer (SMSO) as they were not peace officer classes under the Penal Code. CSLEA argues
that
POC's
proposed unit since the deletion is underinclusive.
The MSO and SMSO are not peace officers, but pursuant to Penal Code
section 830. 7(g) they may exercise peace officer powers
of
arrest within the course and scope
of
their employment
if
they have completed peace officer training on the exercise
of
these
powers under Penal Code section 832. They wear a uniform;36 are armed with a Glock 22
pistol; conduct patrols
of
the California Science Center 24 hours a day and seven days a week;
make arrests; book suspects into the Los Angeles Police Department substation; and issue
release from custody citations. CSLEA has attempted to obtain peace officer status by
legislation for these classes, but has not been successful to date. The MSO receives retirement
benefits under the peace officer/firefighter formula,37 but the SMSO does not.
Proliferation
of
Bargaining Units
DPA opposes any severance from Unit
7.
Rodrigues considers the bargaining
relationship between the State and CSLEA to be mature and stable, and opposes the addition
of
a peace officer only unit, given the finite fiscal and personnel resources available to the State,
and the possibility
of
further unit proliferation.
The uniform is similar to Los Angeles County Sheriffs Department deputies and
includes a full Sam Brown belt, a gun with gun holster, pepper spray and a baton. They wear a
badge on the shirt and have a patch on each shoulder.
37 Government Code section 20392.
35

1.	
Do peace officers under the Dills Act have the right to a separate peace officer
only unit?
2. 	Whether a separate unit consisting
of
peace officers should be severed from the
current Protective Services and Public Safety Unit?
CONCLUSIONS OF LAW
Statutory Right to Peace Officer Only Unit
POC argues that Bargaining Unit 7 peace officers have a right to a separate unit. It
points to the legislative history
of
Dills Act section 3 521. 7 and the predecessor statute, the
Brown Act.
The Brown Act was enacted in 1961 to cover state and local public employees
and
their
organizational rights. In 1971, the Brown Act applied only to state employees' organizational
rights (Stats. 1971, ch. 254, § 6). 	Specifically, former Government Code section 3535
provided:
The state may, in accordance with reasonable standards,
designate positions or classes
of
positions which have duties
consisting primarily
of
the enforcement
of
state laws, and may by
resolution adopted after a public hearing, limit or prohibit the
right
of
employees in such positions or classes
of
positions to
form, join or participate in employee organizations where it is in
the public interest to do so; however, the state may not prohibit
the right
of
its employees who are full-time "peace officers," as
that term is defined in Chapter 4.5 (commencing with Section
830)
of
Title 3
of
Part 2
of
the Penal Code, to join or participate
in employee organizations which are composed solely
of
such
peace officers, which concern themselves solely and exclusively
with the wages, hours, working conditions, welfare programs, and
advancement of the academic and vocational training in
furtherance of the police profession, and which are not
subordinate to any other organization.
The right of employees to form, join and participate in the
activities of employee organizations shall not be restricted by the
36

on any other grounds other than those set forth in this
section. [33
l
(Emphasis added.)
Dills Act section 3521.7 provides:
The board may, in accordance with reasonable standards,
designate positions or classes
of
positions which have duties
consisting primarily
of
the enforcement
of
state laws. Employees
so designated shall not be denied the right to be in a unit
composed solely
of
such employees.
(Emphasis added.)
Dills Act section 3521. 7 does not contain the prohibitory language
of
the Brown Act or
the MMBA which gives peace officers the right to belong to an employee organization
"composed solely
of
such peace officers." The omission
of
this language plainly implies that
PERB is not compelled by law to form "peace officer only" units, and that peace officer
classes do not have the right to belong to a peace officer only unit
if
PERB has not designated
positions which have state law enforcement duties.
Shortly after the passage
of
SEERA, including Government Code section 3521. 7,
Senator H.L. Richardson asked the Attorney General
of
California to render an opinion as to
whether peace officers under sections 830 through 830.11
of
the Penal Code are "given an
absolute right to be placed in a unit or units comprised solely
of
peace officers?" The opinion
answered that
if
the Board did not designate positions or classes as consisting primarily
of
the
enforcement
of
state laws, "no rights are conferred by that section." Even
if
PERB had
designated as law enforcement positions or classes, it would not be "constrained by the
definition of 'peace officer' in the Penal Code." (61 Ops.Cal.Atty.Gen. 405,410 (1978).)
38
MMBA section 3508 is almost identical to former Government Code section 3535.
37

Unit Determination, supra, PERB Decision No. 110-S, the initial unit determination
proceedings, the Board discussed whether to designate positions or classes
of
positions as
having primarily duties
of
enforcing state laws:
The Board chooses, at this juncture, not to designate positions or
classes
of
positions which have duties consisting primarily
of
the
enforcement
of
state laws. Rather, we believe that the unit
criteria specified in section 3 521, apart from section 3 521.
7,
provide ample basis for the Board to make unit determinations.
Thus, the Board declines to exercise the discretionary authority
conferred on us by section 3521.7[,] but reserves the right to do
so at some future date.
In CSPOAICAUSE, supra, PERB Decision No. 773-S, while PERB declined to exercise
its statutory discretion to designate positions or classes
of
positions in a unit which primarily
had law enforcement duties, it stated in a footnote that the Board "could exercise its authority
in a severance context should the Board find that the classifications in the proposed unit
include all
'law
enforcement' positions." (CSPOAICAUSE, supra, PERB Decision No. 773-S,
p. 17, fn. 10.)
Clearly, as gleaned from the unambiguous language found in the Dills Act and its
deviation from the predecessor language
of
the Brown Act, state-employed peace officers do
not have a right to a separate peace officer only unit until PERB "designate[s] positions or
classes
of
positions vvhich have duties primarily
of
the enforcement
of
state laws," whicl1
it
l1as
not yet done. POC does not have a right to a separate unit until PERB makes such an
affirmative designation.
Should the Proposed Unit
of
Peace Officers be Severed from Unit 7
In determining whether PERB should sever a proposed unit from the original unit, the
severance petitioner must prove that the proposed unit is "more appropriate" than the Unit 7
formed in the original unit determination, because a rebuttable presumption exists in favor of
the original 20 bargaining units created by the Board. (State
of
California (Department
of
38

Administration) PERB Decision No. 794-S (DPA), adopted proposed decision at
p. 24; and State of California (Department of Personnel Administration) PERB Decision
No. 988-S (AFSCMEISPPS), adopted proposed decision at p. 20; and, State of California
(Department of Personnel Administration) (1993) PERB Decision No. 1025-S
(AFSCMEIGP P), adopted proposed decision at p. 27 and 28). In attempting to overcome this
rebuttable presumption, petitioners have presented evidence that was not given to the Board in
the original unit determination (DPA, supra, PERB Decision No. 794, p. 5, fn. 5), and/or
demonstrated that a change of circumstances has occurred which divided the commonality of
interest between the proposed unit and the established unit that would justify dividing the unit.
(DPA, supra, PERB Decision No. 794, adopted proposed decision at pp. 28-30.)
Peace officers have unique occupational characteristics. When PERB made its original
unit determination of Unit 7, however, it was well aware of this uniqueness, yet still combined
peace officers with non-peace officer public safety employees. Subsequently, in
CSPOAICAUSE, supra, PERB Decision No. 773-S, the Board was also aware of the peace
officer/non-peace officer mixture in Unit 7, but found that the bargaining history did not justify
severing the unit. Prior unit determinations of the Board remain binding "to the extent that
circumstances and Board precedent remain the same." (Regents of the University of California
(1986) PERB Decision No. 586-H.)39
The questions are what "dramatic change circumstances" occurred (AFSCMEIGPP,
supra, PERB Decision No. 1025-S, adopted proposed decision at p. 4), which did not exist
See also Los Angeles Unified School District (1993) PERB Order No. Ad-250, where
the Board upheld a Board agent's dismissal of a severance petition without providing a formal
hearing. Petitioner attempted to sever bus drivers from a presumptively appropriate operations
and support unit. The petitioner did not allege a "change of circumstances sufficient to justify
a variation of an established unit" as it did not allege any changes in the bus drivers duties,
responsibilities or working conditions since the original unit was established and a subsequent
decision whether to sever the unit was dismissed. (Id. at pp. 6-7.)
39

the original unit determination decision and PERB's decision in CSPOAICAUSE, to
rebut the presumption in favor
of
the original unit and compel the severance
of
a "peace officer
only" unit from Unit 7, and whether "issues
of
primary concern"
of
Unit 7 peace officers "were
addressed in negotiations" (CSPOA/CAUSE, supra, PERB Decision No. 773-S, adopted
proposed decision at p.
16
).
	The only PERB decision upholding a division
of
a state
unit
was
where the differences in the classes at issue led to such turmoil that the bargaining relationship
between the exclusive representative and the employer was impacted, including the bargaining
position(s) taken by the exclusive representative. (DPA, supra, PERB Decision No. 794,
adopted proposed decision at p. 29.)
A comparison
of
the salaries
of
Units
5,
6 and 7 show that the Special Agent,
DOJ
is
within 5.9 percent
of
the top step
of
the Parole Agent I and the Special Agent Supervisor is
within 5.7 percent
of
top step
of
the Parole Agent II. The highest compensated Unit 7
uniformed officer class, the Fish and Game Warden, is within 8.9 percent
of
the top step
of
the
Correctional Officer, and 22.3 percent
of
the CHP Officer (top step).40 The benefits negotiated
for Units 5, 6 and 7 are comparable overall, although certain Unit 5 benefits (Uniform
Allowance and Physical Fitness Incentive) are richer. Using pay parity as a determination
of
whether the rights
of
a proposed group have been trampled upon or ignored is unwarranted,
especially when the comparison is with a class which is dissimilar in enforcement duties, and
the exclusive representative has made genuine efforts to rectify such pay issues.
Even if bargaining success was not achieved in areas
of
concern
of
Unit 7 peace
officers, especially in relation to parity with Unit 5 peace officers, POC must show that this
lack of success was due to CSLEA's failure to adequately represent or assert the interests of
40
The Correctional Officer (top step) was within 12.3 percent of the salary of the CHP
Officer.
40

7 peace officers in relation to its non-peace officers. If Unit 6's exclusive representative,
a predominantly peace officer unit, could not obtain parity with Unit
5,
it is difficult to
conclude that Unit
7's
failure to do so
translates into a failure to adequately represent its
members or that its members rights were trampled upon.
To buttress its case
of
inadequate representation, POC alleges there existed actual
conflicts between the CSLEA peace officer and non-peace officer contingents. A closer look
at these incidents do not show a conflict, but rather reveal issues that cut across both
contingents. In 1998, POC contends, based on Hunter's testimony, that CSLEA refused a
salary increase because the Unit 7 non-peace officers were not offered as much as the peace
officers. However, Barcelona's and Miller's testimony and the State's bargaining notes all
agree that CS LEA refused the offer because
of
the alleged civil service reforms.
41
Indeed, the
entire CSLEA Board, including peace officer affiliates, unanimously refused the offer based on
the civil service reforms. In October 1998, CSLEA attempted to negotiate a modified version
of
the reforms, but the State insisted that CS LEA agree to all
of
the civil service reforms. It
cannot be stated that the Unit 7 peace officers' interests were "trampled upon or ignored" by
CSLEA during this period
of
time. The real issue was civil service reform and not differential
salary increases between peace officers and non-peace officers.
CCPOA negotiated pay parity within $666 of CHP Officer total compensation in late
2001 which was signed by Governor Davis on January 15, 2002. CSLEA was able to negotiate
pay parity also, except that its bill was submitted for legislative approval many months later,
when the tentative agreement fell victim to the recall. CSLEA made the strategic decision to
not bring the bill up to a possible defeat, and renegotiate with the new Governor who
41
Because Barcelona's and Miller's testimony was supported by the State's bargaining
notes, Barcelona's and Miller's testimony is credited over Hunter's where they conflict.
41

opposed the pay parity methodology. The failure
of
the tentative agreement did not
result from CSLEA's inadequate representation which trampled upon the rights
of
peace
officers. All
CS
LEA affiliates were supportive
of
the pay parity for the peace officers, and
CSLEA exerted genuine efforts to improve peace officer interests.
In 2006, the Legislature approved a $30 million augmentation to the employee
compensation budget item to focus on recruitment and retention for wardens. When DP A
negotiated with CSLEA, other recruitment and retention issues with specific peace officer and
non-peace officer classes were addressed. The classes which received most
of
the salary
adjustments were peace officer classes. The wardens did not achieve the desired pay parity,
but other classes (Special Agents and State Park Peace Officers (Rangers)) also received
needed increases. CSLEA's negotiations during the time period did not trample upon or ignore
the Unit 7 peace officers, but rather achieved some success in achieving their salary concerns.
In 2007, when the wardens again tried to achieve parity with deputy sheriff departments by
iegislation, Barcelona did not trample upon Unit 7 peace officers by trying to obtain parity for
other public safety personnel in Unit 7, rather than agreeing to parity for only one Unit 7 class.
Although DOJ Special Agents may not have achieved parity with CDCR Special
Agents, CSLEA has advocated for such parity and the special agents are within 6 percent
of
the Unit 6 Parole Agents. It cannot be concluded that the interests
of
Unit 7 peace officers
were trampled upon or ignored.
One
of
the ways in which CSLEA represented its members was to convert non-peace
officer classes such as the FTB Investigation Specialist into peace officers, as well as support
the conversion oflnsurance Investigators to DOI Fraud Investigators.
If
the unit was severed,
such advocacy could not continue. A non-peace officer unit would have no interest in seeing
that its members become peace officers with better salaries and benefits and leave the
42

unit. In this sense, the members are better served having a mixed unit
of
peace
officers and non-peace officers. Additionally, the split classes created by the State in
November 2007 have many duties which are very similar in nature, and militate toward a
mixed unit to avoid confusion between them.
While it may be true that a number
of
the peace officer classes have increased criminal
enforcement duties, these changes have not occurred in all classes and some changes are
geographically driven. It can also be argued that this difference between peace officers with
mostly criminal enforcement duties and peace officers with regulatory enforcement duties
could only lead to further proliferation within the proposed peace officers' unit.
The individual representation provided to CSLEA peace officer members overall was
satisfactory,
if
not better. CS LEA also has a LDF, which was primarily
of
greater interest to
peace officers than non-peace officers, and was used more by Unit 7 peace officers.
POC must show that the interests
of
Unit 7 peace officers were "trampled upon
or
ignored." (AFSCA1EISPPS, supra, PERB Decision No. 988-S, p. 25, and CSPOA/CAUSE,
PERB Decision No. 773-S, p. 16.) Overall, it has failed to show that the different interests
of
sworn and non-sworn classes have created an unstable bargaining situation.
CLSEA also claims that POC's proposed unit is underinclusive. It seems that
the
MSO's and SMSO's more appropriately belong to a peace officer unit than a non-peace officer
unit. Their uniform is similar to a sheriffs department, they carry firearms and other peace
officer accoutrements. They have peace officer powers. They appear to belong to classes for
which an exclusive representative would work toward obtaining peace officer status and
retirement benefits in the future.
43

light
of
all
of
the factors presented, POC has not rebutted the presumption
that the
existing unit is more appropriate that the proposed unit and the severance petition filed
by POC
should be dismissed.
PROPOSED ORDER
Based upon the foregoing and the entire record in this case it is ordered that the
severance petition filed by the Peace Officers
of
California is DISMISSED.
Pursuant to 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
Public Employment Relations Board (PERB or Board) itself within 20 days
of
service
of
this
Decision. 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
In accordance with PERB regulations, the statement
of
exceptions should identify by
page citation or exhibit number the portions
of
the record,
if
any, relied upon for such
exceptions. (Cal. Code Regs., tit. 8, § 32300.)
A document is considered "filed" when actually received during a regular PERB
business day. (Cal. Code Regs., tit. 8, §§ 32135, subd. (a) and 32130; see also Gov. Code,
§ 11020, subd. (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
California Code
of
Regulations, title 8, section 32135,
subdivision (d), provided the filing party also places the original, together with therequired
number of copies 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.)
44

statement of exceptions and supporting brief must be served concurrently with its
filing upon each party to this proceeding. Proof of service shall accompany each copy served
on a party or filed with the Board itself. (See Cal. Code Regs., tit. 8, §§ 32300, 32305, 32140,
and 32135, subd. (c).)
d16Ct 	~D7'
45
Shawn P. Cloughesy
Administrative Law Judge

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

OCR transcription for search; preserved printed pages are authoritative

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

STATE OF CALIFORNIA,
Employer, Case No. SA-SV-171-S

and PERB Decision No. 2214-S

PEACE OFFICERS OF CALIFORNIA, November 1, 2011
Petitioner,
and

CALIFORNIA STATEWIDE LAW
ENFORCEMENT ASSOCIATION,

Exclusive Representative.

Appearances: Rose Law Firm by Joseph W. Rose, Attorney, for Peace Officers of California;
Carroll, Burdick & McDonough by Jason H. Jasmine and Gary M. Messing, Attorneys, for
California Statewide Law Enforcement Association.
Before Martinez, Chair, McKeag and Huguenin, Members.

DECISION

HUGUENIN, Member: This case comes before the Public Employment Relations

Board (PERB or Board) on exceptions filed by the Peace Officers of California (POC) t

. proposed decision (attached) of the administrative law judge (ALJ) arising out of a severance
petition filed by POC. POC seeks to sever a group of state employees in classifications
designated under the Penal Code as peace officers from existing state Unit 7 (Protective
Services and Public Safety). Unit 7 is currently represented by the California Statewide Law

Enforcement Association (CSLEA).

' The petition specifically stated the proposed unit included:

petition should be dismissed. By the following supplemental discussion, the Board
focuses attention on the following two pivotal points: (1) peace officer employees are not
statutorily entitled to a separate unit; and (2) the presumption that the existing unit is "more
appropriate" than the proposed unit has not been rebutted.
In response to POC's exceptions, CSLEA argues that POC's exceptions contain
inappropriate factual allegations and inadmissible evidence, and that POC's filing is not timely
and shouid be disregarded. As noted below, we conclude that POC's exceptions were timely,
but did include inappropriate content which we disregard.
DISCUSSION
I. Peace Officer Employees Are Not Statutorily Entitled To A Separate Unit
The Brown Act was enacted in 1961 to provide organizational rights for state and local
public employees. Specifically, former Government Code section 3535 provided:
The state may, in accordance with reasonable standards,
designate positions or classes of positions which have duties
consisting primarily of the enforcement of state laws, and may by
resolution adopted after a public hearing, limit or prohibit the
right of employees in such positions or classes of positions to
form, join or participate in employee organizations where it is in
the public interest to do so; however, the state may not prohibit
the rights of its employees who are full-time 'peace officers,' as
that term is defined in Chapter 4.5 (commencing with
Section 830) of Title 3 of Part 2 of the Penal Code, to join or
participate in employee organizations which are composed solely
of such peace officers, which concern themselves solely and
exclusively with the wages, hours, working conditions, welfare
programs, and advancement of the academic and vocational
training in furtherance of the police profession, and which are not
subordinate to any other organization.
The right of employees to form, join and participate in activities
of employee organizations shall not be restricted by the state on
any other grounds other than those set forth in this section.[3]
3 MMBA section 3508 is almost identical to former Government Code section 3535.
3

by the Board. Moreover, even
if
the additional evidence were taken into
consideration by the Board, POC has still not shown that severance is appropriate.
IV.
Timeliness
Of
POC' s Statement Of Exceptions
Any right or duty to act or respond within a prescribed period or on a date certain after
service
of
a document by mail must be extended five days
if
the address is within California.
(State
of
California (State Personnel Board) (2004) PERB Order No. Ad-343-S; PERB
Reg. 32130(c).)
By mail, PERB granted POC an extension
of
time to April 21, 2010 to file its
exceptions. Under PERB Regulation 32130(c), because PERB notified POC
of
its grant
of
the
extension by mail, POC had five additional days beyond the deadline to file its exceptions. POC
filed its exceptions on April 23, 2010 and thus POC's statement
of
exceptions is timely filed.
ORDER
For the above reasons and based upon the entire record in Case No. SA-SV-171-S, it
is
hereby ORDERED that the severance petition filed by the Peace Officers
of
California is
DISMISSED.
Chair Martinez and Member McKeag joined in this Decision.
11

obtained confidential information by representing SPPOAC. Messing represented
SPPOAC supervisors in February 2006 when he sent a letter to Department of Personnel
Administration (DPA) Labor Relations Officer Kristine Rodrigues (Rodrigues) requesting
DPA to analyze Supervisory State Park Peace Officer classes to adjust their salaries under the
"like pay for like work" provisions of Government Code section 19286. Messing was also
retained by CSLEA as chief negotiator in negotiating a memorandum of understanding (MOU)
in the 1990's when a SPPOAC president was on the California Union of Safety Employees
(CAUSE) bargaining team, and Messing obtained information from SPPOAC in negotiating
the MOU. POC joined SPPOAC's motion to disqualify on January 14, 2009.
CSLEA contended that SPPOAC had no standing to bring the motion because the
SPPOAC affiliate was now in trusteeship, and the actual representative of SPPOAC was the
trustee appointed by CSLEA, Ricardo Sanchez (Sanchez).
According to the CSLEA Constitution and Standing Rules, CSLEA's authority resides
in its Board of Directors (CSLEA Board), which is comprised of the elected representative of
each affiliate, and the CSLEA Board elects the President. The CSLEA President is the
corporation's Chief Executive Officer and has "executive, administrative and judicial
authority" over the day-to-day operations of CSLEA and its affiliates. Included in the
(2) "Informed written consent" means the client's or former
client's written agreement to the representation following
written disclosure;
(3) "Written" means any writing as defined in Evidence Code
section 250.
(E) A member shall not, ,vithout the informed written consent of
the client or former client, accept employment adverse to the
client where, by reason of the representation of the client or
former client, the member has obtained confidential information
material to the employment.·
(Emphasis added.)
3

to the Proposed Unit
On the third day of hearing, February 26, 2009, POC moved to amend the proposed unit
to delete the classes of Museum Security Officer and Supervising Museum Security Officer as
they were not peace officer classes under the Penal Code. Neither the State norCSLEA
objected to the amendment. The ALJ granted the amendment pursuant to PERB
Regulation 40240( c). 5
On August 10, 2009, the same date its reply brief was filed, POC requested to delete the
class of Coordinator (Fire and Rescue Services) from the proposed unit pursuant to PERB
Regulation 40240(c), relying on a list of peace officers provided by Rodrigues which included
the Coordinator (Fire and Rescue Services) class, in March/April 2008. CSLEA opposed the
motion on the ground that the motion was filed on the same day that the replybrief was due
and POC had ample opportunity to delete the class because it discovered the class was non
sworn on March 24, 2009, during William Bondshu's testimony. CSLEA argued that POC
should not be rewarded for its conduct.
PERB Regulation 40240(c) provides:
Amendments to correct technical errors, add or delete job
classifications or positions from a party's proposed unit which are
requested after the issuance of the notice of hearing are subject to
approval by the hearing officer. The hearing officer may grant
the requested amendment, so long as it will not serve to unduly
impede the hearing, and provided that sufficient proof of support
is evidenced to support any request for addition of job
classifications ....
(Emphasis added).
In State of California (Department of Personnel Administration) (1989) Decision
No. 773-S (CSPOAICAUSE), PERB analyzed Regulation 40240(c):
5 PERB regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.
5

Unit 5 (Highway Patrol) and Unit 6 (Corrections) containing mostly peace officer
employees. 8 The Unit 7 determination provided:
The protective services and public safety unit is composed of
269 classifications including approximately 5,700 employees who
provide various regulatory, law enforcement, and public safety
and protection services. The activities performed by the
employees in this unit include protecting state land and buildings,
furnishing emergency services, issuing licenses or permits,
arresting individuals violating penal or administrative laws, and
protecting the public from various fraudulent practices and
schemes. It is common for a single classification of employees to
have responsibilities in several of these areas of activity. For
example, fish and game wardens perform almost all of the above
functions.
Employment classes within this unit include special agents
employed by the Department of Justice, state police, state park
rangers, various categories of persons involved in the provision of
emergency services, fish and game personnel, security officers,
intelligence and investigative personnel, as well as various
inspectors and examiners. This unit also includes those fire
service personnel not included in the firefighting unit. The
performance of the job functions of these employees involves, to
varying degrees, an element of personal danger to those providing
the services. It is common for state park rangers, fish and game
personnel, state police, fire personnel, and various other
inspectors and investigators included in this unit to provide
mutual aid and assistance under various circumstances.
Typically, the employees included in this unit perform their
respective job functions away from an office environment and are
frequently required to travel. Vlhile the on-the-job training, work
experience, and general qualifications of many of the
classifications included in this unit vary, several classifications
receive common training, such as that provided under the Peace
Officers Standards Training Program which includes instruction
in the rules of evidence, firearms, citation procedures, and the
laws of arrest and detention.
Employees in this unit share common concerns including hours of
work, uniform allowance, holiday pay, scheduling and days off,
The only non-peace officer class now in Unit 5 is the Highway Patrol Cadet. The only
other classification in the Unit is Officer, California Highway Patrol (CHP). The only non
peace officer class in Unit 6 is the Parole Service Associate.
8

be disturbed lightly. Livermore Valley Joint Unified School
District (1981) PERB Decision No. 165.
(CSPOA/CAUSE, supra, PERB Decision No. 773-S, adopted proposed decision at pp. 16-17;
emphasis added.)
The following peace officer classes have been created and added to Unit 7 since the
CSPOA/CA USE decision: Fraud Investigator, Department
of
Insurance (DOI) (1990); Senior
Investigator, Department
of
Consumer Affairs (DCA) (1991); Peace Officer
I,
Developmental
Center (DDS) (1994); Investigation Specialist II (Technical), Franchise Tax Board (FTB)
(1994); Special Investigator
I,
Department
of
Mental Health and Developmental Services
(DMH and DDS) (1995); Senior Special Investigator, DMH and DDS (1995); Investigator,
Department
of
Motor Vehicles (DMV) (1999); Fraud Investigator, Department
of
Health
Services (DHS) (2000); Criminal Investigator, Employment Development Department (EDD)
(2000); and Criminal Investigator, Department
of
Toxic Substances Control (DTSC) (2000).
Additionally, in 2001, the Unit 7 series specification
of
Licensing Representative I and
II, Alcoholic Beverage Control (ABC), non-peace officer class, was established, and the series
specification of Investigator I and II, ABC, peace officer class, was revised so that licensing
duties would be primarily assigned to the licensing representatives, and the investigators could
concentrate on criminal enforcement.
Proposed Unit for POC's Severance Petition
After the amendments, the proposed unit
of
53
classes sought to be severed by POC
were:
Arson and Bomb Investigator
Arson and Bomb Investigator Assistant
Associate Corporations Investigator
Captain Firefighter/Security Officer
Coordinator (Law Enforcement), Office of Emergency Services
Corporations Investigator
Criminal Investigator, DTSC
12

Investigator, EDD
Deputy State Fire Marshal
Deputy State Fire Marshal III (Specialist)
District Representative I, Division of Codes and Standards
District Representative II, Division of Codes and Standards
Enforcement Representative I, Contractors State License Board (CSLB)
Enforcement Representative II, CSLB
Firefighter/Security Officer
Fire Service Training Specialist
Fire Service Training Specialist III
Fish and Game Lieutenant (Specialist)
Fish and Game Warden
Food and Drug Investigator
Food and Drug Program Specialist
Fraud Investigator, DHS
Fraud Investigator, DOI
Hospital Police Officer
Investigation Specialist I, FTB
Investigation Specialist II (Technical), FTB
Investigator Assistant
Investigator I, ABC
Investigator II, ABC
Investigator Trainee, ABC
Investigator, DCA
Investigator, DMV
Labor Standards Investigator
Lottery Agent
Peace Officer I, DDS
Pipeline Safety Engineer
Security Officer I, Department of Justice (DOJ)
Senior Food and Drug Investigator
Senior Investigator, DCA
Senior Special Investigator, DMH and DDS
Senior Special Investigator
Sergeant, State Fair Police
Special Agent Supervisor, DOJ
Special Agent Trainee, DOJ
Special Agent, DOJ
Special Investigator I
Special Investigator I, DMH and DDS
State Fair Police Officer
State Fair Police Officer (Seasonal)
State Fire Marshal Trainee
State Park Peace Officer (Lifeguard)
State Park Peace Officer (Ranger)
Warden-Pilot, Department of Fish and Game (DFG)
13

CSLEA Structure
CSLEA's current structure has 19 affiliates divided into three units: Unit A, Unit Band
Unit C. These affiliates are:
Unit A
Association of Motor Vehicles Investigators of California
(AMVIC)
Association of Special Agents, Department of Justice (ASA-DOJ)
California Association of Criminal Investigators (CACI)
California Food and Drug Investigators (CAFDI)
California Association of Fraud Investigators (CAFI)
California Association of State Investigators, Alcoholic Beverage
Control (CASI)
California Fish & Game Warden Association (CFGWA)
Hospital Police Association of California (HP AC)
State Park Peace Officer Association (SPPOAC)
UnitB
Association of Deputy Commissioners (ADC)
Association of Motor Carrier Operations Specialists (AMCOS)
California Association of Regulatory Investigators and Inspectors
(CARII)
California Organization of Licensing Registration Examiners
(COLRE)
Fire Marshals and Emergency Services Association (FMESA)
Unit C
Association of Conservation Employees (ACE)
Association of Criminalists, Department of Justice (AC-DOJ)
California Highway Patrol Public Safety Dispatcher Association
(CHP-PSDA)
State Employed Fire Fighters Association (SEFF A)
California Association of Law Enforcement Employees (CALEE)
Each affiliate, with the approval of the CS LEA Board, can change the classes in it. The
majority of Unit 7 peace officers are members of the Unit A affiliates, but peace officers are
also in affiliates in Unit B (ADC, CARII and FMESA) and Unit C (SEFF A and CALEE).
14

of the hearing, the following peace officer benefits among the units were:
Unit 7 (CSLEA) Unit 6 (CCPOA) Unit 5 (CAHP)
Retirement formula
3% at 50 years 15
Retirement formula
3% at 50 years
Retirement formula
3% at 50 years
Longevity Pay
17 years - 1% of base salary
19 years - 2% of base salary
20 years - 3% of base salary
21 years - 4% of base salary
22 years - 5% of base salary
25 years - 7% of base salary
Longevity Pay
17 years - 1% of base salary
18 years - 2% of base salary
19 years - 3% of base salary
20 years - 4% of base salary
21 years - 5% of base salary
22 years - 6% of base salary
25 years - 8% of base salary
Longevity Pay
18 years - 2% of base salary
19 years-3% of base salary
20 years - 4% of base salary
21 years - 5% of base salary
22 years - 6% of base salary
25 years - 8% of base salary
Bilingual Pay Differential
$100 per month
Bilingual/Sign Language Pay
$100 per month.
Bilingual Pay Differential
$100 per month
Educational Incentive Pay
1) Intermediate Post Certificate
or AA Degree16
$50 a month
2) Advanced POST Certificate
or BA Degree17
$100 a month
Educational Incentive Pay
AA Degree or BA Degree
$100 or 2.2% of top step
Correctional Officer salary
Educational Incentive Pay
1) Intermediate Post Certificate
or AA Degree
2.5% of base salary or no
less than $120 a month
2) Advanced POST Certificate
or BA Degree
5% of base salary or no less
than $240 a month
Night Shift Differential
State Park Ranger
Security Officer I
State Security Officer
Hospital Peace Officer
$.50 per hour
Night Shift Differential/
Weekend Shift Differential
(all classes, except Parole
Agent)
$.50 per hour night shift
$.65 per hour weekend shift
Night Shift Pay
Swing Shift -- $1.00 per hour
Graveyard -- $1.50 per hour
Uniform Allowance
$640/year
Boot allowance -- Depending on
class no cost for initial purchase
of boots
Uniform Allowance
$530/year
Uniform Allowance
Up to $920/year
$25 per month for maintenance
and cleaning
Boot allowance (motorcycle)
Initial $255, Subsequent $85
15 In June 2002, Governor Gray Davis signed Senate Bill No. 183 (2002-2003 Reg.
Sess.) which gave peace officers/firefighters in Unit 7 a 3 percent at age 50 formula for those
who retired after July 1, 2004. The same bill gave the same retirement benefit to Unit 6 peace
officer/firefighters, except that it was not effective until January 1, 2006.
16 Associate of Arts degree.
17 Bachelor of Arts degree.
16

7 (CSLEA) Unit 6 (CCPOA) Unit 5 (CAHP)
Physical Fitness Incentive
$65 per month
Physical Fitness Incentive
Less than 60 months service
$65 per month
60 or more months service
$130 per month
Physical Fitness Incentive
Less than 60 months service
$65 per month
60 or more months service
$130 per month
Canine Differential for
Maintenance and Care
DPR Peace officers
$189 per month
DMH Peace Officer
5% per month
Canine Expenses Reimbursed
and allowing 16 hours for
maintenance of dog
Canine Pay for Maintenance and
Care of Dog
$156.65 per month
Training Officer Differential
DOJ Special Agent or Special
Agent Supervisor
DFG classes
DPR State Park Rangers
DOI Fraud Investigator
One step18 above pay rate
DPR Cadet FTO for Peace
Officers
Two step above pay rate
Field Training Officer Pay
5% of daily rate pay
Special Operations Unit
Differential - DFG
One step above their hourly rate
Investigator Pay (assigned
Vehicle Theft Investigator or
Fraud Investigator)
$50 per month
Motorcycle/ ATV Pay
One step above the monthly
equivalent hour rate
Motorcycle Pay
4% of base salary or no less than
$175 per month
Task Force Commander
DOJ Special Agent Supervisor
$250 per pay period
Officer in Charge Pay
5% of the daily rate of base pay
Recruitment and Retention
Differential for Classes
State Park Peace Officer
(Ranger and Lifeguard)
Warden-Pilot DFG
Fish and Game Patrol Lieutenant
(Specialist)
Fish and Game Warden
$175 per month
Recruitment Incentive Housing
Stipend
San Quentin State Prison
Correctional Training Facility
Salinas Valiey State Prison
$175 a month
One step is a 5 percent increase.
17

7 (CSLEA) Unit 6 (CCPOA) Unit 5 (CAHP)
Recruitment and Retention
Differential, DPR and DFG for
Relocation to Specific
Geographic Areas
Warden-Pilot
Fish and Game Patrol Lt.
Up to
$3
50 per month
Warden, Range B
State Park Peace Officer
(Ranger/Lifeguard) Range B
Lifeguard, Range B
Up to $300 per month
Warden, Range A
State Park Peace Officer
(Ranger/Lifeguard) Range A
Up to $220 per month
Recruitment and Retention
Differential (Geographic for
Desert Prisons) for A venal,
Ironwood, Chuckawalla Valley,
Calipatria and Centinela State
Prison
$2,400 annual
Flight Time Differential (Pilot)
Special Agent, Special Agent
Supervisor, DPR peace officer
Two steps for each pay period
Flight Differential
Approx. 11.8%
Mounted Patrol (Cal Expo)
$20 per day
Arduous Pay Differential (for
FLSA exempt employees for up
to four months per fiscal year)
Flight Pay (flying on
noncommercial aircraft
of
fours
hours per month)
$165 or 3.6%
of
top step for
Correctional Officer salary
whichever is greater
Paramedic Pay (assigned full
time to perform duties
of
paramedic)
$50 per month
I. Alleged Bargaining Conflict(s) between Peace Officers and Non-Peace Officers
POC contends that there is an actual or inherent conflict that exists in representing
peace officer and non-peace officer employees and cites a number of bargaining incidents as
support.
a. 1998 Negotiations with Governor Wilson
Pete Wilson was Governor of the State of California from 1991 to 1998. Craig Brown
(Brown) was Governor Wilson's Director of Finance from March 1996 to December 30, 1998.
18

A document entitled, "Contract Discussion Points" in the 1999 DP A Bargaining Notes
CAUSE (Unit 7) is the only public safety unit without an
agreement. CAHP signed an agreement during the last week of
Wilson's administration, with Forestry and CCPOA signing last
October. CAHP had accepted Wilson's reform proposals in 1995
when it obtained a contract and the other units did not. Forestry
and CCPOA accepted some modified versions of the reforms.
CAUSE did not accept the reforms and did not get a contract.
CAUSE offered to accept the same modified versions as Forestry
and CCPOA, but still could not get a contract.
(Emphasis added.)
b. Pay parity with CHP Officers
Gray Davis became Governor in January 1999. After Brown retired as Director of
Finance, he joined a governmental relations firm. CAUSE eventually retained Brown as its
primary legislative advocate.
In late 2001, in an unpublished sideletter, CCPOA negotiated a pay parity methodology
with the State where the total compensation package for Unit 6 would be $666 less than the
total compensation package received by CHP officers. The MOU covered the time period of
2002 to July 2006. The MOU bill (Sen. Bill No. 65 (2001-2002 Reg. Sess.) § 2) was passed by
the Legislature and signed by Governor Davis on January 15, 2002. (Stats. 2002, ch. 1.)
In 2003, CAUSE negotiated a tentative agreement with Governor Davis which had a
salary component of the weighted total compensation average of five of CAUSE's peace
officer classes to be within $777 of the total compensation received by CHP officers. The
entire CAUSE Board was in favor of this pay parity. The tentative agreement was forwarded
to the Legislature for approval (Sen. Bill No. 348 (2003-2004 Reg. Sess.)). As the legislative
session was ending, the recall movement against Governor Davis gained momentum, and
legislative support for the CAUSE MOU bill began to wane for fear that they would be
21
A document entitled, "Contract Discussion Points" in the 1999 DPA Bargaining Notes

as it undermined his authority to collectively bargain employee compensation.23 The
Budget Joint Conference Committee moved the augmentation to the employee compensation
item.
In an August 14, 2006 letter to DP A Director Gilb, three State Senators on the Budget
Joint Conference Committee stated that the funds were "to address the recruitment and
retention issues in employee compensation" and that DPA needed to "describe the problem
that the funds aim to address and identify the departments to which the funds will be
allocated." The letter strongly urged DPA to "devote the budget monies to resolving the issues
of
game warden retention, recruitment and compensation." At the same time, Brown was
discussing the augmentation with DP A, and DP A stated it would use the money to provide
additional increases to overcome recruitment and retention problems caused by inadequate
compensat10n. · 24
When CS LEA met and conferred regarding the budgeted money, DP A emphasized that
the money would go to solve recruitment and retention issues. CFGWA President Joe Mello
was at the CSLEA bargaining table, and did not voice any objection to DP A's compensation
offer made to the peace officers.
A tentative agreement was reached in August 2006. The following additional salary
increases ,vere provided for peace officer/firefighter classes:
Brown had never recalled seeing an augmentation survive the budget process.
24 CS LEA General Manager/Chief Counsel Kasey Clark (Clark) testified that under
Governor Schwarzenegger, DP A used a market-driven methodology in determining the amount
of salary a class should receive based upon evidence of ongoing recruitment and retention
problems despite the agency's best efforts.
24

July 2006 July 2007 July 2008 July 2009 Total
Special Agent DOJ
State Park Peace Officer
(Ranger)
Fish and Game Warden
3.5% Cost of
Living
Adjustment
6.5% Equity
Adjustment
5% Step
Increase
5% Step
Increase
2Q%L)
All other Peace
Officer/Firefighter
Classes
3.5% Cost of
Living
Adjustment
2-4% Cost of
Living
Adjustment
5% Step
Increase
10.5%
to
12.5%
Non-peace officer/firefighter classes such as the CHP Public Safety Dispatcher and
Communications Operator received a 25 percent salary increase;26 the Criminalist, Photo
Electronic Specialist, Latent Print Analyst and Questioned Document Examiner received a
10.5 percent to 12.5 percent increase; the Program Representatives received a 5.5 percent to
7.5 percent increase and all other non-peace officer/firefighter classes received a 5.5 percent to
7.5 percent increase.
Rodrigues, who has been assigned to Unit 7 from November 2005, testified that in the
negotiations, CSLEA did not trade money from sworn to non-sworn classes. Barcelona stated
that CSLEA always negotiated two separate deals in every agreement, and pay and benefits for
the sworn employees had always been greater than the non-sworn. Barcelona believes that
CSLEA has represented unit members well, although it has not done as well as CAHP. CAHP
is the most visible law enforcement state agency association and had unmatched access to the
Governor as its members provided protection for him, while CSLEA represents a diverse
number of small peace officer groups competing for budget money to perform various law
enforcement functions, according to Barcelona.
) These increases would not be fully realized until the employees attained the top step
of their salary range for the class.
26 CHP and the Department of Parks and Recreation (DPR) had difficulty retaining staff
dispatchers/communications operators (dispatchers) as dispatchers obtained higher paid
positions with local agencies after training with the CHP and DPR.
25

which was designated for peace officers. The State Personnel Board (SPB) approved
DPA's recommendation and created these classes in November 2007. Those split classes were
District Representative I and II, Division of Codes and Standards,
(Class Codes 8960 and 8958)
District Representative I and II, Division of Codes and Standards
(Non-Peace Officer), (Class Codes 8959 and 8961)
Enforcement Representative I and II, Contractors State License
Board, (Class Codes 8793 and 8795)
Enforcement Representative I and II, Contractors State License
Board (Non-Peace Officer), (Class Codes 8791 and 8800)
Investigator Assistant, (Class Code 8554)
Investigator Assistant (Non-Peace Officer), (Class Code 8555)
Special Investigator I, (Class Code 8553)
Special Investigator I (Non-Peace Officer), (Class Code 8563)
Senior Special Investigator, (Class Code 8550)
Senior Special Investigator (Non-Peace Officer), (Class Code
8551)
There are three peace officer and 120 non-peace officer enforcement representatives
working for the DCA Contractor's State Licensing Board (CSLB). The peace officers have the
same duties as non-peace officers except that the peace officers may arrest and serve search
warrants. If a peace officer enforcement representative is not available to make an arrest or
serve a search warrant, the non-peace officer contacts a local police officer or deputy sheriff to
do it.
The District Representative, Division of Codes and Standards class for the Department
of Housing and Community Development (HCD) is a split class. The peace officer district
representatives interview witnesses, write subpoenas, and take administrative action against
those HCD regulates, while the non-peace officers conduct inspections of manufactured homes
and commercial modules and issue notices of correction. Both classes can work together to
investigate the unlicensed sale of manufactured homes.
32

1.
Do peace officers under the Dills Act have the right to a separate peace officer
only unit?
2. Whether a separate unit consisting
of
peace officers should be severed from the
current Protective Services and Public Safety Unit?
CONCLUSIONS OF LAW
Statutory Right to Peace Officer Only Unit
POC argues that Bargaining Unit 7 peace officers have a right to a separate unit. It
points to the legislative history
of
Dills Act section 3 521. 7 and the predecessor statute, the
Brown Act.
The Brown Act was enacted in 1961 to cover state and local public employees
and
their
organizational rights. In 1971, the Brown Act applied only to state employees' organizational
rights (Stats. 1971, ch. 254, § 6). Specifically, former Government Code section 3535
provided:
The state may, in accordance with reasonable standards,
designate positions or classes
of
positions which have duties
consisting primarily
of
the enforcement
of
state laws, and may by
resolution adopted after a public hearing, limit or prohibit the
right
of
employees in such positions or classes
of
positions to
form, join or participate in employee organizations where it is in
the public interest to do so; however, the state may not prohibit
the right
of
its employees who are full-time "peace officers," as
that term is defined in Chapter 4.5 (commencing with Section
830)
of
Title 3
of
Part 2
of
the Penal Code, to join or participate
in employee organizations which are composed solely
of
such
peace officers, which concern themselves solely and exclusively
with the wages, hours, working conditions, welfare programs, and
advancement of the academic and vocational training in
furtherance of the police profession, and which are not
subordinate to any other organization.
The right of employees to form, join and participate in the
activities of employee organizations shall not be restricted by the
36

on any other grounds other than those set forth in this
section. [33
l
(Emphasis added.)
Dills Act section 3521.7 provides:
The board may, in accordance with reasonable standards,
designate positions or classes
of
positions which have duties
consisting primarily
of
the enforcement
of
state laws. Employees
so designated shall not be denied the right to be in a unit
composed solely
of
such employees.
(Emphasis added.)
Dills Act section 3521. 7 does not contain the prohibitory language
of
the Brown Act or
the MMBA which gives peace officers the right to belong to an employee organization
"composed solely
of
such peace officers." The omission
of
this language plainly implies that
PERB is not compelled by law to form "peace officer only" units, and that peace officer
classes do not have the right to belong to a peace officer only unit
if
PERB has not designated
positions which have state law enforcement duties.
Shortly after the passage
of
SEERA, including Government Code section 3521. 7,
Senator H.L. Richardson asked the Attorney General
of
California to render an opinion as to
whether peace officers under sections 830 through 830.11
of
the Penal Code are "given an
absolute right to be placed in a unit or units comprised solely
of
peace officers?" The opinion
answered that
if
the Board did not designate positions or classes as consisting primarily
of
the
enforcement
of
state laws, "no rights are conferred by that section." Even
if
PERB had
designated as law enforcement positions or classes, it would not be "constrained by the
definition of 'peace officer' in the Penal Code." (61 Ops.Cal.Atty.Gen. 405,410 (1978).)
38
MMBA section 3508 is almost identical to former Government Code section 3535.
37

the original unit determination decision and PERB's decision in CSPOAICAUSE, to
rebut the presumption in favor
of
the original unit and compel the severance
of
a "peace officer
only" unit from Unit 7, and whether "issues
of
primary concern"
of
Unit 7 peace officers "were
addressed in negotiations" (CSPOA/CAUSE, supra, PERB Decision No. 773-S, adopted
proposed decision at p.
16
).
The only PERB decision upholding a division
of
a state
unit
was
where the differences in the classes at issue led to such turmoil that the bargaining relationship
between the exclusive representative and the employer was impacted, including the bargaining
position(s) taken by the exclusive representative. (DPA, supra, PERB Decision No. 794,
adopted proposed decision at p. 29.)
A comparison
of
the salaries
of
Units
5,
6 and 7 show that the Special Agent,
DOJ
is
within 5.9 percent
of
the top step
of
the Parole Agent I and the Special Agent Supervisor is
within 5.7 percent
of
top step
of
the Parole Agent II. The highest compensated Unit 7
uniformed officer class, the Fish and Game Warden, is within 8.9 percent
of
the top step
of
the
Correctional Officer, and 22.3 percent
of
the CHP Officer (top step).40 The benefits negotiated
for Units 5, 6 and 7 are comparable overall, although certain Unit 5 benefits (Uniform
Allowance and Physical Fitness Incentive) are richer. Using pay parity as a determination
of
whether the rights
of
a proposed group have been trampled upon or ignored is unwarranted,
especially when the comparison is with a class which is dissimilar in enforcement duties, and
the exclusive representative has made genuine efforts to rectify such pay issues.
Even if bargaining success was not achieved in areas
of
concern
of
Unit 7 peace
officers, especially in relation to parity with Unit 5 peace officers, POC must show that this
lack of success was due to CSLEA's failure to adequately represent or assert the interests of
40
The Correctional Officer (top step) was within 12.3 percent of the salary of the CHP
Officer.
40

statement of exceptions and supporting brief must be served concurrently with its
filing upon each party to this proceeding. Proof of service shall accompany each copy served
on a party or filed with the Board itself. (See Cal. Code Regs., tit. 8, §§ 32300, 32305, 32140,
and 32135, subd. (c).)
d16Ct ~D7'
45
Shawn P. Cloughesy
Administrative Law Judge

State of California (Peace Officers of California and California Statewide Law Enforcement Association) (PERB 2214S)

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