State of California (Department of Developmental Services) (PERB 2234S)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

SERVICE EMPLOYEES INTERNATIONAL
UNION, LOCAL 1000,

Charging Party, Case No. SA-CE-1850-S
Vv. PERB Decision No. 2234-S
STATE OF CALIFORNIA (DEPARTMENT OF January 31, 2012

DEVELOPMENTAL SERVICES),

Respondent.

Appearances: Daniel Luna, Staff Attorney, for Service Employees International Union,
Local 1000; Department of Personnel Administration by Jennifer M. Garten, Labor Relations
Counsel, for State of California (Department of Developmental Services).
Before McKeag, Dowdin Calvillo and Huguenin, Members.
DECISION

HUGUENIN, Member: This case is before the Public Employment Relations Board
(PERB or Board) on appeal by the Service Employees International Union, Local 1000 (SEIU)
of a Board agent’s partial dismissal (attached) of its unfair practice charge. The charge, filed
February 16, 2010, alleged that the State of California (Department of Developmental

Services) (State) violated section 3519(c) of the Dills Act’ by: (1) unilaterally transferring

work out of the bargaining unit; (2) failing to negotiate in good faith about the installation of

~' The Dills Act is codified at Government Code section 3512 et seq. Unless otherwise
noted all statutory references are to the Government Code.

surveillance cameras at the Porterville Developmental Center (PDC); and (3) failing to
negotiate in good faith about SEIU' s request for information.2
On February 16, 2011, the Board agent partially dismissed the charge. In the dismissal
letter, the Board agent concluded that: (1) the charge failed to allege as a threshold matter that
Unit 15 employees, represented by SEIU, had previously and exclusively performed the
transferred work; (2) the State's alleged refusal to bargain occurred outside the six-month
statute of limitations; (3) regarding the State's responses, within the timeframe of April 16,
2009 and October 27, 2009, to SEIU's request for information, the charge failed to allege with
sufficient facts how the State's responses were not in good faith; and (4) regarding the State's
responses after October 27, 2009 to SEIU's request for information, SEIU did not respond to
the State's claim of confidentiality, and thus failed to show that the State was unwilling to
bargain. The Board agent partially dismissed SEIU' s ailegation that the State failed to
negotiate in good faith about SEIU' s request for information.3
We have reviewed the entire record in this matter. Based on this review and applying
the relevant law, we find the Board agent's warning and dismissal letters to be well-reasoned,
adequately supported by the record and in accordance with the applicable law. Accordingly,
the Board adopts the warning and dismissal letters as the decision of the Board itself, subject to
the discussion below regarding SEIU's appeal.
2 On May 19, 2010, SEIU filed a request for injunctive relief. The Board denied that
request on May 24, 2010.
3 The Board agent issued a complaint on SEIU' s allegation that the State failed to
respond to two items of information requested by SEIU.
2

DISCUSSION
On appeal, SEIU argues that the Board agent erred in dismissing its allegation that:
(1) the State unilaterally transferred work out
of
the bargaining unit; and (2) the State failed to
negotiate in good faith about the installation
of
surveillance cameras at the PDC.4 We address
SEIU's arguments on appeal in turn.
SEIU Has Not Established A Prima Facie Case That The State Unilaterally Transferred Work
Out
Of
The Bargaining Unit
On appeal, SEIU argues that the Board agent erred in dismissing its allegation that the
State unilaterally transferred work out
of
the bargaining unit. 	SEIU's appeal asserts that the
Board agent failed to consider SEIU's allegation that the Unit
15
bargaining unit members
were historically assigned monitoring duties. We disagree.
Relying on the Board's decision in Eureka City School District (1985) PERB Decision
No. 481, the Board agent concluded that the charge failed to allege as a threshold matter that
Unit
15
employees had "previously" and "exclusively" performed the transferred work. 	In the
partial dismissal letter, the Board agent explained adequately that camera-monitoring work was
a completely new duty that neither bargaining unit had performed in the past. SEIU has
provided no information on appeal that changes this conclusion. We concur with the Board
agent's findings and affirm the Board agent's dismissal
of
this allegation.
The State's Alleged Refusal To Bargain About The Effects Of The Installation Of The Camera
System Is Barred By The Six-Month Statute
Of
Limitations
On appeal, SEIU argues that the Board agent erred in dismissing its allegation that the
State failed to negotiate 	good faith about the installation of surveillance cameras at the PDC.
SEIU' s appeal asserts that the State's refusal to bargain about the cameras did not come until
SEIU does not argue in its appeal that the Board agent erred in dismissing allegations
related to SEIU' s request for information.
3

December 2009 and, since SEIU filed its charge on February 16, 2010, the State's refusal to
bargain and SEIU' s subsequent charge fall within the six-month statute
of
limitations.
	We
disagree.
Dills Act section 3514.S(a)(l) prohibits PERB from issuing a complaint with respect
to "any charge based upon an alleged unfair practice occurring more than six months prior to
the filing
of
the charge." The Board agent found that sometime prior to April 16, 2009, SEIU
had requested to bargain over the camera-related work and that sometime prior to April 16,
2009, the State had refused to bargain over the camera-related work. Relying on
section 3514.S(a)(l), the Board agent concluded in the warning letter that since SEIU filed its
charge on February 16, 2010 and the State refused to bargain sometime prior to April 16, 2009,
nine months had elapsed between the State's first refusal to bargain and the date SEIU filed the
charge. As such, the Board agent found that the State's alleged refusal to bargain about the
camera-related work did not fall within the six-month statute
of
limitations.
The record demonstrates that SEIU sent a letter to the State on April 16, 2009 entitled
"2
nd
Written Request [to bargain}." Because SEIU's letter dated April 16, 2009 indicates that
it is a second request to bargain, it appears that prior to April 16, 2009, SEIU made an initial
demand to bargain. 5 The record further shows that on December 9, 2009, SEIU made a third
request to bargain. 	However, as stated in the warning letter, the second and third requests to
bargain reiterate SEIU' s first, pre-April 16, 2009 demand. There were no allegations that
The record does not contain a copy of the first demand. Nor does the charge allege
what, if anything, the State said or did in response to the first demand.
4

circumstances had changed between the first, second, or third demand.6 For these reasons, we
affirm the Board agent's dismissal
of
this allegation.
ORDER
The unfair practice charge in Case No. SA-CE-1850-S is hereby DISMISSED IN
PART WITHOUT LEAVE TO AMEND.
Members McKeag and Dowdin Calvillo joined in this Decision.
6 In the absence of changed circumstances, subsequent demands to bargain about a prior
change do not constitute new violations so as to bring the dispute within the statute of
limitations. (San Dieguito Union High School District (1982) PERB Decision No. 194.)
5

STATE OF CALIFORNIA 	EDMUND G. BROWN 	Governor
PUBLIC EMPLOYMEN'.1 RELATIONS BOARD
Sacramento Regional Office
1031 18th Street
Sacramento, CA 95811-4124
Telephone: (916) 327-8384
Fax: (916) 327-6377
February 15, 2011
Daniel Luna, Staff Attorney
SEIU Local 10.00
1551 E Shaw #139
Fresno, CA 93710
Re: 	Service Employees International Union Local 1000 v. State of California (Department
of Developmental Services)
Unfair Practice Charge No. SA-CE-1850-S
PARTIAL DISMISSAL
Dear Mr. Luna:
SEIU Local 1000 (SEIU) filed the above-referenced unfair practice charge with the Public
Employment Relations Board (PERB or Board) on February 16, 2010. The charge alleges that
the State of California (State), Department of Developmental Services (Department), violated
section 3519(c)ofthe Dills Act1 by: (1) unilaterally transferring work out of the bargaining
unit; (2) failing to negotiate in good faith about the installation of surveillance cameras at
Porterville Developmental Center (PDC); and; (3) failing to negotiate in good faith about
SEIU's request for information.2
In a Warning Letter dated January 4, 2011, PERB advised you that certain allegations
contained in the charge did not state a prima facie case, including the "transfer of work"
allegation. PERB advised you that if there were any factual inaccuracies or additional facts
that would correct the deficiencies, you should amend the charge by January 24, 2011. 	Per
your request, PERB extended that deadline to January 31, 2011, and February 4, 2011,
respectively. SEIU filed an amended charge on February 4, 2011.
The original charge clearly shows that both the peace officers and the security guards
performed "monitoring" duties and that the "allocation" ·of those duties between bargaining
units fluctuated over time. The amended charge attempts to address this problem by asserting
the security guards traditionally performed the greater portion of the duties. The amended
1 The Dills Act is codified at Government Code section 3512 et seq. The text of the
Dills Act and PERB Regulations may be found at www.perb.ca.gov.
2 On May 19, 20 I 0, SEIU filed a request for injunctive relief. The Board denied that
request on May 24, 2010. Also, in a prior related case, PERB found that SEIU had not
demanded to negotiate the effects of the State's decision to install surveillance cameras at
PDC. (See State of California (Department of Developmental Services & Office of Protective
Services) (2009) PERB Decision No. 2062-S.) 	·

SA-CE-1850-S
February 15, 2011
Page 2
charge does not, however, deny that the proportion
of
duties fluctuated over time. Also,
regardless
of
the exact proportion
of
duties at any point in time, the fact remains that
camera
monitoring was a completely new duty that·neither bargaining unit had performed in the past.
Accordingly, the facts alleged in the amended charge do not alter the Warning Letter's
"transfer
of
work" analysis.
The amended charge also includes three declarations from employees who participated in,
or
were otherwise involved with, negotiations. By way
of
example, Megan Lane declares
that
during a bargaining session on March 23, 2010, SEIU asked the Department "what analysis" it
had done concerning the safety "effectiveness"
of
the cameras. The Department refused to
answer, claiming that SEIU was attempting to bargain the Department's "decision" to install
cameras, not the "effects"
of
that decision. Also, Robert Johnson and Richard Chavez declare
that Jo Ann
Juarez-Salazar-the
SEIU representative responsible for
PDC-told
them she had
sent certain "information requests" to the Department in December 2009, and that, as
of
May
10, 2010, Johnson and Chavez "believed" that the Department had not "provided the
information." These factual declarations, along with the other assertions in the declarations, do
not change the Warning Letter's analysis regarding the "requests for information."
Accordingly, except for the request for information allegation mentioned in footnote 9
of
the
Warning Letter, PERB hereby dismisses the charge as amended and it does so for the reasons
discussed in this letter and in the Warning Letter.
Right to Appeal
Pursuant to PERB Regulations,3 Charging Party may obtain a review
of
this dismissal
of
the
charge by filing an appeal to the Board itself within twenty (20) calendar days after service
of
this dismissal. (Cal. Code Regs, tit. 8, § 32635, subd. (a).) Any document filed with the Board
must contain the case name and number, and the original and five (5) copies
of
all documents
must be provided to the Board.·
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
PERB Regulation 32135(d), provided the filing party also places the original,
together with the required number
of
copies and proof
of
service, 	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.)
3 PERB's Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.

SA-CE-1850-S
February 15, 2011
Page 3
The
Board's
address is:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95811-4124
(916) 322-8231
FAX: (916) 327-7960
If
you file a timely appeal
of
the refusal to issue a complaint, any other party may file
with
the
Board an original and five copies
of
a statement in opposition within twenty (20) calendar days
following the date
of
service
of
the appeal. (Cal. Code Regs, tit. 8, § 32635, subd. (b).)
Service
All documents authorized to be filed herein must also be "served" upon all parties to the
proceeding, and a "proof
of
service" must accompany each copy
of
a document served
upon
a
party or filed with the Board itself. (See Cal. Code Regs., tit. 8,
§ 32140 for the required
contents.) The document will be considered properly "served" when personally delivered or
deposited in the mail or deposited with a delivery service and properly addressed. A document
may also be concurrently served via facsimile transmission on all parties to the proceeding.
(Cal. Code Regs, tit. 8, § 32135, subd. (c).)
Extension
of
Time
A request for an extension
of
time, in which to file a document with the Board itself,
must
be
in writing and filed with the Board at the previously noted address. A request for an extension
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filing the document. The request must indicate good cause for and,
if
known, the position
of
each other party regarding the extension, and shall be accompanied by proof
of
service
of
the
request upon each party. (Cal. Code Regs, tit. 8, § 32132.)

SA-CE-1850-S
February 15, 2011
Page 4
Final Date
If no appeal is filed within the specified time limits, the dismissal will become final when the
time limits have expired.
Sincerely,
WENDI L. ROSS
Interim General Counsel
By~n~
Senior Regional Attorney
Attachment
cc: Jennifer Garten, Attorney
HG

STATE OF CALIFORNIA 	EDMUND G.
BROWN
JR., Governor
PUBLIC EMPLOYMEN
.L
RELATIONS BOARD
Sacramento Regional Office
1031
18th Street
Sacramento, CA 95811-4124
Telephone: (916) 327-8384
Fax: (916) 327-6377
January
4,
2011
Daniel Luna, Staff Attorney
SEIU Local i 000
1551 E Shaw #139
Fresno, CA 93710
Re: 	Service Employees International Union Local I 000
v.
State
of
California (Department
of
Developmental Services)
Unfair Practice Charge No. SA-CE-1850-S
PARTIAL WARNING LETTER
Dear Mr. Luna:
SEIU Local 1000 (SEIU) filed the above-referenced unfair practice charge with the Public
Employment Relations Board (PERB or Board) on February 16, 2010. The charge alleges that
the State
of
California (State), Department
of
Developmental Services (DDS), violated section
3519(c)ofthe Dills Act1 by: (1) unilaterally transferring work out
of
the bargaining unit; (2)
failing to negotiate in good faith about the installation
of
surveillance cameras at Porterville
Developmental Center (PDC) and; (3) failing to negotiate in good faith about SEIU's request
for information. 2
BACKGROUND AS ALLEGED
State Bargaining Unit
15
(Unit 15) includes security guards at PDC. SEIU is the exclusive
representative of Unit 15. 	State Bargaining Unit 7 (Unit 7) includes peace officers at PDC.
SEID is not the exclusive representative
of
Unit
7.
1. 	Transfer
of
Bargaining Unit Work
According to the charge, the classifications
of
security guard and peace officer were both
"created to provide security and surveillance duties" at PCD and other "developmental
centers." The security guards "monitor" developmental centers and "prevent escape or illegal
entry
of
unauthorized individuals." Similarly, peace officers are responsible for "patrolling
and protecting buildings" and "checking for unauthorized movement and breaches of security."
Peace officers also "monitor client and visitor activities." The charge continues as follows:
1 The Dills Act is codified at Government Code section 3512 et seq. The text
of
the
Dills Act and PERB Regulations may be found at www.perb.ca.gov.
2 On May 19, 2010, SEIU filed a request for injunctive relief. The Board denied that
request on May 24, 2010.

SA-CE-1850-S
January 4, 2011
Page 2
Some times, particular safety/security duties have been allocated to Unit
15
employees while in other instances they have been allocated to Unit 7
peace officers. Moreover, in some instances duties have been reassigned
from one group to another.
Prior to 2009, DDS did not operate surveillance cameras at PDC. Thus, neither the security
guards nor the peace officers had traditionally operated such cameras. In 2009, DDS installed
surveillance cameras at PDC. On some unspecified date in 2009, DDS assigned the peace
officers the exclusive responsibility for operating the surveillance cameras. DDS assigned the
camera work to the peace officers even though it had, according to the charge, "represented to
[Unit]
15
security guards [that] they would be trained to operate the new equipment."
If
the charge is interpreted in the light most favorable to SEIU, the charge asserts that DDS
transferred bargaining unit
\Vork
from Unit
15
to Unit 7 when it assigned the camera work to
the peace officers.
2. 	The Surveillance Cameras at PDC
(a) The Prior PERB Decision
In 2007, Jo Ann Juarez-Salazar was the SEIU representative responsible for Unit
15
employees
at PDC. 	(See State
of
California (Department
of
Developmental Services & Office
of
Protective Services) (2009) PERB Decision No. 2062-S (DDS).) 	On December 21, 2007,
Juarez-Salazar demanded to bargain about the State's inchoate plan to install surveillance
cameras at PDC. (Ibid.) 	On February 19, 2008, SEIU filed a PERB charge alleging that DDS
had failed to bargain about the cameras. PERB issued a complaint on March 6, 2008 alleging
that DDS had failed to bargain the "effects"
of
its decision to install the cameras and a PERB
Administrative Lavi Judge (i•
..
..LJ)
conducted an evidentiary hearing. (Ibid.) As
of
the date
of
the
hearing-July
17,
2008-DDS
had not yet installed any cameras. (Ibid.)
On March 24, 2009, the ALJ dismissed the complaint, finding that Juarez-Salazar had failed to
make a "valid request" to bargain the "effects"
of
the State's decision to install the cameras.
Specifically, the ALJ found that Juarez-Salazar's had not "identified any specific identifiable
effects" in her demand to bargain. (Ibid., citing Beverly Hills Unified School District (2008)
PERB Decision No. 1969 (Beverly Hills). On September 14, 2009, the Board affirmed the
ALJ's dismissal. (DDS, supra, PERB Decision No. 2026, pp. 1-2.)
(b) The Current PERB Charge
In 2009, Juarez-Salazar was still the SEIU representative at PDC. On or about March 24,
2009,3 Juarez-Salazar observed security cameras at PDC. According to the charge, SEIU was
"concerned about the effects of the installation of [those] cameras." On April 16, Juarez-
Hereafter, all references are to 2009, unless otherwise noted.

SA-CE-1850-S
January 4, 2011
Page 3
Salazar sent a letter to the State's bargaining representatives, including Patricia Flannery,
demanding to bargain about the cameras. The letter is entitled "2nd Written Request [to
Bargain] ."4 Interpreting Juarez-Salazar's second demand in the light most favorable to SEIU,
Juarez-Salazar demanded to bargain the effects that the cameras might have on employee
"performance, monitoring, attendance, discipline, privacy, and safety." Juarez-Salazar
demanded an "immediate" meeting to discuss the matter. The State did not immediately
respond.
On May I, Juarez-Salazar again wrote to Flannery, stating that she had not received a response
to her second demand to bargain. Juarez-Salazar asked Flannery to "immediately" respond to
her demand or SEIU "will pursue all available legal recourse." The State did not immediately
respond.
Hov1e\'er, based on a State letter dated May 5, and received by SEIU. on December 9 (tl1e
belated letter),5 it is clear that the State (I) believed that it had already bargained "all of the
[camera-related] issues" over "which SEIU [was] requesting to ~eet and confer" and (2) the
State was refusing to bargain any further. 	Specifically, the belated letter stated that:
The Department believes that it has addressed all of the [camera-related]
issues presented in which SEIU is requesting to meet and confer.
The belated letter also asserts that the State had told SEIU-prior to April 16-that it was
refusing to bargain about the camera-related issues.
In a letter dated December 9, Juarez-Salazar reiterated her prior demands to bargain about
camera-related issues. In a response dated December 17, Patrick Gage, a Labor Relations
Officer with the State, reiterated the position the State had taken prior to April 16. Specifically
he insisted that "there \'1✓ ere no changes to negotiate over."
3. 	Request for Information
On April 16, Juarez-Salazar sent the State a letter requesting 20 individually numbered items
of information (Information Request). Juarez-Salazar asked for a response by April 30, 2009.
The State did not respond by April 30. On May 1, Juarez-Salazar sent the State a short,
follow-up letter. The State's belated letter-which SEIU received on December 9-contained
Because Juarez-Salazar's letter dated April 16, is entitled "2nd Written Request [to
Bargain]," it appears that, prior to April 16, Juarez-Salazar made a "first" demand to bargain.
The charge does not contain a copy of the first demand. Nor does the charge allege what, if
anything, the State said or did in response to the first demand.
5 At this stage of the proceedings, PERB accepts as true SEIU's allegation that
although the State's letter is dated May 5-SEIU did not receive the letter until December 9.
(Golden Plains Unified School District (2002) PERB Decision No. 1489.)

SA-CE-1850-S
January 4, 2011
Page 4
a detailed response to all 20 items. But, as will be discussed below, the belated letter was not
the State's first or only response to the Information Request.
(a) The State's First Responses-May 1 to October 27
In a letter dated October 27, Juarez-Salazar complained to Flannery as follows:
The responses provided by your office [in reply to the Information
Request] have been vague, ambiguous and illusive.
It is clear from this language that SEIU received some "responses" from the State between
May 1 and October 27. 6 However, neither Juarez-Salazar's letter of October 27, nor the charge
describe the content of those "responses." Thus, it is unclear what the parties said to each
Other hP.tn,eP.n T\lf,n,1 c,nrl nctob"'r 17 and n,h;,-i,, ;-rarnr r.-Ftbe ?O 1'tems 1n thp. Tnf."lrrric:,f;,.r,
Request remained at issue on October 27. Accordingly, the current record lacks factual
allegations on which PERB can conclude that the State's first "responses" were "vague,
ambiguous and illusive."
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(b) The State's Subsequent Responses-December 3
In her letter dated October 27, Juarez-Salazar again asked for the 20 items listed in the
Information Request. 7 She also asked for seven additional items. ,
Flannery responded in a letter dated December 3. Flannery first identified the 20 items that
had appeared in the Information Request. 	She then asserted that she had adequately addressed
each of those items in a letter dated May 5-the so-called belated letter-a copy of which she
enclosed.8 Flannery then answered four of the seven "new" requests.
Flannery, however, refused to answer tluee of the "new" requests, although she gave a reason
for each refusal. One of the "new" requests asked the State to provide a copy of the
Although the State's belated letter contained detailed responses to each of the 20
items in the Information Request, Juarez-Salazar could not have been referring to. those
"responses" because-as the charge alleges-Juarez-Salazar did not receive those "responses"
u11til December 9.
7 Although Juarez-Salazar confused matters by assigning different numbers to some of
the original 20 items. (Compare Information Request, Request Nos. 15-20 and Letter dated
October 27, Request Nos. 22-27 (identical requests, different numbers).)
8 The belated letter gave a detailed answer to each of the 20 items in the Information
Request. Juarez-Salazar did not respond to the belated letter, so it appears that the State has
answered, either directly or through its subsequent actions, all 20 items listed in the
Information Request.

SA-CE-1850-S
January 4, 2011
Page 5
"Implementation Monitoring System Pilot Information." In response, Flannery explained to
Juarez-Salazar that the requested document was "the system manual" and that the manual
contained "confidential and sensitive" information. Flannery declined to release the manual
because its release would, in her opinion, create
"a
safety and security risk at PDC."
Juarez-Salazar did not respond to Flannery's letter dated December 3.9
DISCUSSION
1. 	Transfer
of
Bargaining Unit Work
In determining whether a party has violated Dills Act section 3519( c
),
PERB utilizes either the
"per se" or "totality
of
the conduct" test, depending on the specific conduct involved and the
effect
of
such conduct on the negotiating process. (Stockton Unified School District (1980)
PERB Decision No. 143, pp. 21-22.) Unilateral changes are considered "per se" violations
if
certain criteria are met. Those criteria are: 	(1) the employer implemented a change in policy
concerning a matter within the scope
of
representation, and (2) the change was implemented
before the employer notified the exclusive representative and gave it an opportunity to request
negotiations. (Grant Joint Unified High School District (1982) PERB Decision No. 196, p. 9.)
The transfer
of
work from bargaining unit employees to those in a different bargaining unit is a
subject within the scope
of
representation. (Rialto Unified School District (1982) PERB
Decision No. 209, p. 6.) To "prevail on a transfer
of
work theory," the charging party
"must
establish as a threshold matter" that its bargaining unit had "previously" and "exclusively
performed" the duties at issue. (Eureka City School District (1985) PERB Decision No. 481,
p.
15
(emphasis in original) (Eureka).)
The
v1ork
at
issue in
thi~
case is the operation
and
monitoring
of
the surveillance cameras. 	The
charge shows that the State started using cameras in 2009. It further shows that once the State
started using the cameras, it assigned all
of
the camera-related work to the peace officers.
Thus, the charge fails to allege as "a threshold matter" that Unit
15
employees had
"previously" and "exclusively" performed the camera-related work. (Eureka, supra, PERB
Decision No. 481, p. 15.)
Further,
if
it is assumed for the sake
of
discussion that the work at issue can generally be
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security work traditionally "overlapped" the two bargaining units. 	For instance, the security
guards "monitor[ ed]" the developmental centers and "prevent[ ed] escape or illegal entry
of
unauthorized individuals," while the peace officers "patrol[ed] and protect[ ed] buildings" and
"check[ed] for unauthorized movement and breaches of security." Additionally, the State
would occasionally reassign the security duties "from one group to another." Where, as in this
0	
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9 PERB will address Flannery's refusal to answer the remaining two "new" requests in
a separate document.

SA-CE-1850-S
January 4, 2011
Page 6
case, unit and non-unit employees traditionally have performed "overlapping" duties, the
employer does not violate its duty to negotiate in good faith merely by increasing the quantity
of
work that non-unit employees perform and decreasing the quantity
of
work that unit employees
perform. (Eureka, supra, PERB Decision No. 481,
p.
15.) Thus, assuming that "camera
related" and "security" work are one and the same, the State merely adjusted "overlapping"
duties and was therefore under no obligation to bargain the adjustment (Ibid.)
Accordingly, for the reasons discussed above, the charge does not establish an illegal transfer
of
work.
2. 	Refusal to Bargain about the Effects
of
the Cameras
Provided certain conditions are met, an employer commits an unfair practice when it refuses to
bargain the "effects''
of
an othervvise non-negotiable decision. (See Beverly Hills, supra,
PERB Decision No. 1969,
p.
10.) However, PERB is prohibited from issuing a complaint
based on conduct that occurred more than six months before the charge was filed. 	(Gov. Code,
§ 3514.5(a)(l); Coachella Valley Mosquito and Vector Control District
v.
Public Employment
Relations Board (2005) 35 Cal.4th 1072, 1077 (Coachella).) The limitations period begins to
run once the charging party knows, or should have
knov-rn,
about the conduct underlying the
charge. 	(Gavilan Joint Community College District (1996) PERB Decision No. 1177, p. 4.) A
charging party bears the burden
of
demonstrating that the charge is timely filed. 	(Tehachapi
Unified School District (1993) PERB Decision No. 1024,
p.
4; State
of
California (Department
of
Insurance) (1997) PERB Decision No. 1197-S.)
The record in this case shows that at some point prior to April 16, Juarez-Salazar made
her
"first" demand
to
bargain about the camera-related work. The record further shows that
sometime prior to April 16, the State had refused to bargain based on its belief that it had"addrPS""'rl
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thn State a
"2nd Written Request [to Bargain]," camera-related issues. In the State's belated
response
which is dated May 5, but which SEIU did not receive until December
9-the
State bluntly
refused to bargain as follows:
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The Department believes that it has addressed all
of
the [camera-related]
issues presented in which SEIU is requesting to meet and confer.
Hovvever~ that blunt refusal was not the State's first. 	Rather, the State was simply,. quoti11g
from an even earlier
refusal-a
refusal that pre-dates April 16. Thus, based on the current
record, it appears that prior to April 16, Juarez-Salazar had demanded to bargain the camera
related work and that sometime prior to April 16, the State had flatly refused to do so, insisting
that it had already "addressed all of the [camera-related] issues."
SEIU filed the charge on February 16, 2010. 	The State had refused to bargain sometime prior
to April 16, 2009. Thus, at least nine months elapsed between the State's first refusal to
bargain and the date SEIU filed the charge. Accordingly, the charge is barred by the six-month
statute of limitations. (Gov. Code,§ 3514.5(a)(l); Coachella, supra, 35 Cal.4th atp., 1077.) (

SA-CE-1850-S
January 4, 2011
Page 7
Granted, Juarez-Salazar made a second demand to bargain on April 16, and a third demand to
bargain on December
9,
the date she received the belated letter. But these subsequent demands
simply reiterate her first, pre-April 16 demand. There is no allegation that circumstances had
changed between the first, second, or third demand. In the absence
of
changed circumstances,
subsequent demands to bargain about a prior change do not constitute new violations so .as to
bring the dispute v,rithin the statute
of
limitations. (San Dieguito Union High School District
(1982) PERB Decision No. 194, p.10.)
Accordingly, the State's alleged refusal to bargain about the camera-related work occurred
sometime before April
16
and thus it falls outside the six-month statute
of
limitation.
	PERB
therefore lacks jurisdiction over this part
of
the charge. (Coachella, supra,
35
Cal.4th 1072,
1082.)
3. 	Req~est for Information
It is a charging party's responsibility to allege a "clear and concise statement
of
the facts and
conduct alleged to constitute an unfair practice." (Cal. Code Regs., tit. 8, § 32615(a)(5)
(emphasis added).) That means the charge must allege the "who, what, when, where and how"
of
an unfair practice. (United Teachers-Los Angeles (Ragsdale) (1992) PERB Decision
No. 944 (Ragsdale).) Mere legal conclusions are not sufficient to state a prima facie case.
(Ibid.; Charter Oak Unijzed School District (1991) PERB Decision No. 873.)
The exclusive representative is entitled to all information that is "necessary and relevant" to
the discharge
of
its duty
of
representation. (Stockton Unified School District (1980) PERB
Decision No. 143, p.
13
(Stockton).) PERB uses a liberal standard, similar to a discovery-type
standard, to determine relevance
of
the requested information. (Trustees
of
the California
State University (1987) PERB Decision No. 613-H, p. 13.) Failure to provide such information
is a per se violation
of
the duty to bargain in good faith.
Notwithstanding the liberal standard, an employer can refuse to release information that is
otherwise "relevant and necessary" if, for example, it
vvill
impose burdensome costs on the
employer, or the release will compromise employee privacy rights. (Los Rios Community
College District (1988) PERB Decision No. 670, p.
13
(Los Rios); Modesto City Schools and
High School District (1985) PERB Decision No. 479, p. 11.) However, the employer must
affirmatively assert its concerns and then both parties must bargain in good faith to ameliorate
+h,,0e
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(P.rY\t',L-,'{rPr
bargained in good faith by offering to delete social security numbers from requested
document).) The employer cannot simply ignore a union's request for information.
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(a) 	The State's Responses Between April 16 and October 27
In this case, Juarez-Salazar requested 20 items of information on April 16. Between April 16
and October 27, the State provided certain "responses" to that request. The charge alleges that
those responses were "vague, ambiguous and illusive," but the charge does not provide
sufficient/acts from which one can conclude "what" it was about the "responses" that rendered

SA-CE-1850-S
January 4, 2011
Page 8
them vague and/or ambiguous. The charge, in other words, alleges a conclusion. As the
authorities make clear, conclusions are insufficient to establish a prima facie violation. 	(Cal.
Code Regs., tit.
8,
§ 32615(a)(5); Ragsdale, supra, PERB Decision No. 944; (charge
must
allege "who, what, when, where and how," not just conclusions).)
Accordingly, the charge fails to establish that the State ignored an information request,
or
refused to bargain about an information request, between April
16
and October 27.
(b) 	The State's Subsequent Responses
In her letter dated October 27, Juarez-Salazar again asked for the 20 items listed in the
Information Request dated April 16. However, in that same letter, Juarez-Salazar admits that
the State had already provided "responses" to at least some
of
the 20 items in the Information
Request,-although, as discussed above, the charge fails to allege the specific facts
surrounding those "responses."
Additionally, in her letter dated December 3, Flannery provided detailed responses to
the list
of
20 items. But Juarez-Salazar did not respond, thus leaving the record unclear as to which,
if
any,
of
the 20 items remained at issue in December. Accordingly, this part
of
the charge fails
to show that the State refused to provide, or bargain about, the 20 listed items.
However, in her letter dated October 27, Juarez-Salazar asked for seven "new" items. In her
response letter dated December 3, Flannery provided information on four
of
the seven "new"
items. Flannery's responses to these four items appear on their face to be adequate. Also,
Juarez-Salazar did not object to these four responses. Thus, based on the current record, this
part
of
the charge fails to show that the State refused
to
provide, or bargain about, the four
items.
Finally, in her letter dated October 27, Juarez-Salazar had asked--for the first
time-that
the
State provide a copy
of
the "Implementation Monitoring System Pilot Information. Flannery
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manual contained "confidential and sensitive" information. Flannery declined to release the
manual because its release would, in her opinion, create "a
_safety
and security risk at PDC."
Stated differently, Flannery affirmatively stated her concerns about releasing the entire
document. (Los Rios, supra, PERB Decision No. 670, pp. 10-12.)
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Having stated her concerns, it was incumbent on both parties to bargain in good faith about
how to ameliorate those concerns. Juarez-Salazar, however, did not respond to Flannery.
Thus, although Flannery refused to release the entire document, citing security concerns, this
part of the charge fails to show that Flannery was unwilling to bargain about how the parties
might ameliorate those concerns. Accordingly, this part of the charge fails to show that the
State refused to bargain about the system manual. 10
In her letter dated December 3, Flannery refused to provide information on two
additional items. As noted above, PERB will address those two items in a separate document.

SA-CE-1850-S
January 4, 2011
Page 9
CONCLUSION
For these reasons, the parts
of
the charge discussed above do not state a prima facie case.
11
If
there are any factual inaccuracies in this letter or additional facts that would correct the
deficiencies explained above, Charging Party may amend the charge. The amended charge
should be prepared on a standard PERB unfair practice charge form, clearly labeled First
Amended Charge, contain all the facts and allegations you wish to make, and be signed under
penalty
of
perjury by an authorized agent
of
Charging Party. The amended charge must have
the case number written on the top right hand comer
of
the charge form. The amended charge
must be served on the respondent's representative and the original proof
of
service must be
filed with PERB.
If
an amended charge or withdrawal is not filed on or before January 24,
2011,
12
PERB will dismiss your charge.	
If
you have any questions, please call me at the above
telephone number.
s
Senior Regional Attorney
HG
1 A prima facie case is established where the Board agent can determine that the facts
as alleged state a legal cause of action and that the charging party is capable
of
providing
admissible evidence to support the allegations. (Eastside Union School District (1984) PERB
Decision No. 466.) If, after investigation, the factual allegations are in conflict or the parties
assert contrary theories of law, then due process demands that a complaint be issued and the
matter be sent to formal hearing." (Ibid.)
12
A document is "filed" on the date the document is actually received by PERB,
including if transmitted via facsimile. 	(PERB Regulation 32135.)