State of California (Department of Forestry and Fire Protection, State Personnel Board) * * * VACATED by State of California (Department of Forestry and Fire Protection, State Personnel Board (2014) PERB Decision No. 2317a-S (PERB 2317S)

VACATED by State of California (Department of Forestry & Fire Protection,
State Personnel Board (2014) PERB Decision No. 2317a-S
STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
CDFFIREFIGHTERS,
Charging Party,
V.
STATE OF CALIFORNIA (DEPARTMENT OF
FORESTRY & FIRE PROTECTION, STATE
PERSONNEL BOARD),
Res ondent.
Case No. SA-CE-1896-S
PERB Decision No. 2317-S
June 17,2013
Appearances: 	Carroll, Burdick & McDonough by Gary M. Messing, Attorney, for CDF
Firefighters; State of California Department of Personnel Administration by David M. Villalba,
Legal Relations Counsel, for State of California (Department of Forestry & Fire Protection,
State Personnel Board). 	·
Before Martinez, Chair; Huguenin and Winslow, Members.
DECISION
WINSLOW, Member: 	This case is before the Public Employment Relations Board
(PERB or Board) on appeal by the CDF Firefighters (CDFF) of a dismissal (attached) of its
amended unfair practice charge against the State of California (Department of Forestry & Fire
Protection, State Personnel Board) (State), specifically the State Personnel Board (SPB). 	The
charge, as amended, alleged that SPB violated the Ralph C. Dills Act (Dills Act) 1 by
unilaterally changing disciplinary appeal procedures without meeting and conferring with
CDFF.
The General Counsel dismissed the charge, concluding that SPB has no duty to bargain
with CDFF because the State Constitution gives SPB plenary authority over civil service
statutes, including rule-making deemed necessary by SPB to enforce those statutes.
1 The Dills Act is codified at Government Code section 3512 et seq. Unless otherwise
indicated, all statutory references herein are to the Government Code.

The Board has reviewed the entire record in this matter and given full consideration to
the appeal and response thereto. Based on this review, the Board affirms the dismissal, but for
different reasons than those relied on by the General Counsel.
SUMMARY OF ALLEGATIONS2
According to the charge, on August 18, 2010, SPB unilaterally implemented changes in
the California Code of Regulations governing di9ciplinary hearings and appeals by state
employees. Despite the fact that CDFF had submitted demands to meet and confer and offered
suggested changes in the regulations that were initially proposed by SPB, SPB refused to meet
and confer with CDFF. SPB asserted that it had no duty to meet and confer with CDFF or any
other employee organization representing state employees because changes to the civil service
system were "not part of the collective bargaining process."
The adopted changes to the regulations touched on such matters as the authority of SPB
to bypass appellate procedures, pretrial disclosures of witnesses and testimony summary, a
time limit for bringing cases to hearing, and time limits on propounding discovery requests.
CDFF filed this charge on February 11, 2011, within six months of SPB's final
adoption of the regulation changes.
THE DISMISSAL
The Office of the General Counsel dismissed this charge based on its reading of State
Personnel Bd. v. Department of Personnel Admin. (2005) 37 Cal.4th 512 (DPA ), which
invalidated provisions in memoranda of understanding that established review boards to
adjudicate certain disciplinary actions. 	These provisions violated Article VII, Section 3 of the
2 At this stage of the proceedings, we assume that the essential facts alleged in the
amended charge are true. 	(San Juan Unified School District (1977) EERB Decision No. 12
[prior to January 1978, PERB was known as the Educational Employment Relations Board or
EERB]; Trustees of the California State University (Sonoma) (2005) PERB Decision
No. 1755.)
2

California Constitution, which grants SPB the authority to enforce the civil service statutes and
"review disciplinary actions." 	The Court concluded: 	"Because employee discipline is an
integral part of the civil service system, the State Personnel Board's exclusive authority to
review disciplinary decisions is a critical component of the civil service system." (DPA, at
p. 527; emphasis in original.)
Since Article VII, Section 3(a) of the Constitution also grants SPB authority to adopt
and administer rules necessary to enforce the civil service statutes, the General Counsel
reasoned that revision of SPB regulations governing disciplinary appeal procedures was "an act
pursuant to its C011stitutional mandate, and, as such, is not within the scope of bargaining
under the Dills Act."
POSITION OF THE PARTIES
CDFF contends on appeal that even though SPB is not the appointing authority for the
bargaining unit employees represented by CDFF, it nevertheless is obligated to negotiate over
mandatory terms and conditions of employment, citing Los Angeles County Civil Service Com.
v. Superior Court (1978) 23 Cal.3d 55 (Los Angeles County). SPB's constitutional authority
over administration of the civil service system is not mutually exclusive of the obligation to
negotiate over mandatory subjects of bargaining, according to CDFF. CDFF invites us to
harmonize potential conflict between the Dills Act and the Constitution, relying on Pacific
Legal Foundation v. Brown (1981) 29 Cal.3d 168.
According to CDFF, this case differs from DPA, supra, 37 Cal.App.4th 512, because
here, the obligation to bargain over procedural regulations governing discipline does not divest
SPB of its authority to review disciplinary actions or to establish rules relevant to those
actions. It would simply have to negotiate with the "impacted representatives" before making
such changes.
3

In opposing the appeal, the State asserts four reasons supporting the dismissal of the
charge. First, requiring SPB to negotiate over disciplinary appeal procedures would interfere
with its constitutional authority because the regulations are part of how disciplinary appeals are
managed. Los Angeles County, supra, 23 Cal.3d 55 is distinguishable from this case because it
did not involve an entity with the same unique level of constitutional authority as SPB,
according to the State. Second, SPB does not have a duty to bargain because it is not the
Governor's designated representative in negotiations with state employee organizations.
Third, disciplinaryappeal procedures·in general areoutsidethe scopeof bargaining under the
Dills Act because discipline is governed by statutes. Therefore, according to the State, changes
to disciplinary regulations are outside the scope of bargaining because disciplinary procedures
are "extra-contractual," citing Carmichael Recreation & Park District (2008) PERB Decision
No. 1953-M. Lastly, the State urges that the appeal be dismissed because the unfair practice
charge was untimely. Itasserts that CDFF knew on January 8, 2010 of these proposed
regulatory changes. According to the State, "CDFF was fully aware of SPB's intent to alter its
regulations a full thirteen months before CDFF filed its charge on February 17,2011."
DISCUSSION
Because we uphold the dismissal of this charge on the ground that SPB does not have a
duty to meet and confer with exclusive representatives of non-SPB employees, we do not
address the other arguments raised by the State.
This unfair practice charge was initially filed against both SPB and the appointing
authority of employees represented by CDFF, the California Department of Forestry and Fire
Protection (CDF). However, the amended charge makes clear that the charge is directed only
against SPB, not CDF. Although SPB is not the employer in this case, PERB has held.that
SPB may be subjected to unfair practice charges in certain circumstances. (State of California
4

(State Personnel Board) (2006) PERB Decision No. 1864-S (State of California), at p. 23
. ["SPB, as a State agency, is subject to the Dills Act section 3519''].)3 InState of California,
SPB was charged with interfering with protected rights of employees and their organizations in
violation of Dills Act section 3519(a) and (b).
Where it is alleged that SPB has violated Dills Act section 3519(c) by refusing to
bargain or by unilaterally changing terms and conditions of employment allegedly within the
scope of bargaining, we must determine if SPB has a duty to negotiate with an exclusive
representative of employees employed by different appointing authority. For the reasons
below, we hold that it does not have such a duty.
The Dills Act uses three different terms to refer to state management entities.
Section 35130) defines "'[s]tate employer,' or 'employer,' for the purposes of bargaining or
meeting and conferring 1n good faith, (as] the Governor or his or her designated
representatives." (Emphasis added.) As the Board noted in State of California, supra, PERB
Decision No. 1864-S, at p. 22, this definition is for the limited purpose of designating the state
representative for the purpose of bargaining or meeting and conferring in good faith.
Section 3519, which defines unfair practices under the Dills Act, uses the broader term "state."
As State of California concluded, these two sections 3519 and 3513G) address separate
subjects and "state" as it is used in section 3519 is not synonymous with the more narrowly-
defined "[s]tate employer" in section 3513G).
Although the Governor or his designee is the state's representative for purposes of
meeting and conferring, it is well established that the appointing authority will be liable for
violations of Dills Act section 3519(c) when the appointing authority makes a unilateral
change in terms of conditions of employment of its own employees. (State of California
3 Dills Act section 3519 sets forth and defines unfair practices by "the state.H
5

(Department of Mental Health) (1990) PERB Decision No. 840-S [Department of Mental
Health liable for violating section 3519(c) when it unilaterally changed employees scheduling
system]; State of California (Department of Youth Authority (2000) PERB Decision
No. 1374-S [unilateral change in released time policy]; State of California (Department of
Corrections) (2000) PERB Decision No. 1381-S [Department of Corrections found liable for
failing to negotiate over safety effects of staff reduction in prison libraryJ.)4
Although Dills Act section 3519(a), proscribing unfair practices, declares that it will be
unlawful "for the state to do any of the following: . . . (c) [r]efuse or fail to meet and confer in
good faith," (emphasis added) we do not believe that the Legislature intended by this wording
to impose on SPB a duty to negotiate with any unions other than those representing SPB
employees.5
Requiring SPB to negotiate with unions other than those that represent its own
employees would undermine the essence of collective bargaining which implies trade-offs and
compromises between the employer and the exclusive representative. 	Each party is expected
to exert its power to obtain its respective goals. This frequently involves one side giving up
some advantage or benefit in a trade to obtain something perceived to be of greater value.
Because SPB is not the appointing power for CDF employees, this dynamic of quid pro quo is
absent. 	The CDFF has no leverage with SPB because the union has nothing of conceivable
value to trade in exchange for a favorable agreement on disciplinary appeal regulations. 	For
4 PERB has also exercised jurisdiction over allegations that individual state agencies
have violated section 3519(a) or (b). (State of California (Department of Corrections) (2001)
PERB Decision No. 1435-S; State of California (Department of Developmental Services)
(1982) PERB Decision No. 228-S; State of California (Departments of Personnel
Administration, Banking, Transportation, Water Resources and Board of Equalization ) (1998)
PERB Decision No. 1279-S [various departments liable for violations of section 3519(a) and
(b) for discriminatory application of internal e-mail policy].)
5 "State," as opposed to "state employer" is not defined in the Dills Act.
6

these statutory and policy reasons, we conclude that the Legislature did not intend to impose
on SPB a duty to bargain with exclusive representatives of employees other than those of SPB.
Because we conclude SPB has no duty to bargain with CDFF under the Dills Act, there
is no need to resolve the state constitutional issues raised by the parties concerning the SPB's
authority over rule-making regarding disciplinary appeals. Nor do we opine on any of the
other issues raised by the State in support of its opposition to the appeal.
ORDER
The unfair practice charge in Case No. SA-CE-1896-S is hereby DISMISSED
WITHOUT LEAVE TO AMEND.
Chair Martinez and Member Huguenin joined in this Decision.
7

STATE OF CALIFORNIA 	· ,,_,. 	__====== 	-_,Governor	EDMUNDG·BROWNJR.__ = = _
PUBLIC EMPLOYMENT KELATIONS BOARD
Sacramento Regional Office
1031 18thStreet
Sacramento, CA 95811-4124
Telephone: (916) 327-8386
Fax: (916) 327-6377
December 9, 2011 .
Gary M. Messing, Attorney
Carroll, Burdick & McDonough, LLP
980 9th Street, Suite 380
Sacramento, CA 	95814-2723
Re: 	CDF Firefighters v. State of California (Department of Forestry & Fire Protection,
State Personnel Board)
Unfair Practice Charge No. SA-CE-1896-S
DISMISSAL LETTER
Dear Mr. Messing:
The above..:referenced unfair practice charge was filed with the Public Employment Relations
Board (PERE. or Board) on February 17, 2011. The CDF Firefighters (CDFF or Charging
Party) alleges that the State of California (Department of Forestry & Fire Protection, State
Personnel Board) (State or Respondent) violated the Ralph C. Dills Act (Dills Act) 1 by
unilaterally changing a term and condition of employment without providing CDFF n_otice and
an opportunity to negotiate. 	Although the charge was filed against both the California
Department of Forestry & Fire Protection and the State Personnel Board, this letter will only
discuss the allegations a:s they relate to the State Personnel Board (SPB).
Charging Party was informed in the attached Warning Letter dated October 18,2011, that the
above-referenced charge did not state a prima facie case. You were advised that, if there were
any factual inaccuracies or additional facts that would correct the deficiencies explained in that
letter, you should amend the charge; You were further advised that, unless you amended the
charge to state a prima facie case or withdrew it prior to November. I , 2011, the charge would
be dismissed.
. The October 18 Warning Letter informed Charging Party that the California Constitution
expressly requires SPB to adopt and administer the rules necessary to enforce the civil service
statutes. 	Therefore, the SPB's action to revise its regulations governing disciplinary hearings
and appeals for State employees in August 2010 was an act pursuant to its Constitutional
mandate and not within the scope of bargaining under the Dills Act.
1 The Dills Act is codified at Government Code section 3512 et seq. The text of the
Dills Act and PERE Regulations may be found ·at www.perb.ca.gov.

SA-CE-1896-S
December 9, 2011
Page 2
After requesting and being granted an extension of time, Charging Party filed a first amended
charge on November 9, 2011.2 The November 9, 2011 amended charge does not sufficiently
address the concern that the SPB's action to revise its regulations in August 2010 was an act
pursuant to its Constitutional mandate and not within the scope of bargaining under the Dills
Act. Charging Party continues to allege that the State is required to meet and confer with
employee organizations regarding rules governing grounds for disciplinary action, as well as
the manner in which disciplinary actions are to be heard, citing to Vernon Fire Fighters v. City
of Vernon (1980) 107 Cal.App.3d 802 and San Mateo City School District (1984) PERB
Decision No. 383. Therefore, according to the charge, the State should be required to meet and
confer over any changes to the SPB's disciplinary appeal process.
As Charging Party was previously informed, it is well-established that a refusal to bargain over
matters within the scope of bargaining is a per se violation of section 3519(c) of the Dills Act.
However, Charging Party was also informed that, unlike the above-cited cases, the SPB has no
duty to bargain, because SPB acts pursuant to its constitutional mandate under Article VII of
the State Constitution.
Article VII, section 3 of the California Constitution states:
2 The Warning Letter also addresses Charging Party 's burden of alleging the "who,
what, when, where and how" of an unfair practice charge. 	( State of California (Department of
Food and Agriculture) (1994) PERB Decision No. 1071-S, citing United Teachers-Los Angeles
(Ragsdale) (1992) PERB Decision No. 944.) 	Specifically, Charging Party was told that the
burden includes facts showing that the unfair practice charge was timely filed. 	Charging Party
was informed that in a unilateral change case, the statute of limitations begins to run on the
date the charging party has actual or constructive notice of the respondent's intent to
implement a change in policy. 	( County of Sonoma (2011) PERB Decision No. 2173-M; South
Placer Fire Protection District (2008) PERB Decision No. 1944-M.) Actual or constructive
notice occurs when the exclusive representative has knowledge of the proposed change. 	(State
of California (Department of Personnel Administration) (2008) PERB Decision No. 1978-S.)
In the original charge, Charging Party stated that CDFF sent an initial letter setting
forth objections and assertions that SPB could not make its proposed changes without
bargaining on June 30, 2010. 	As such, it appeared that CDFF had knowledge of SPB's intent
to modify its regulations as early as June 30, 2010. Charging Party was asked _to provide
additional information establishing when it had actual or constructive knowledge of the
proposed regulation change. 	In the amended charge, Charging Party states that between June
30 and August 18, 2010, the parties "continued to engage in a back-and-forth discussion on the
issue of the duty to meet and confer, and [CDFF] continued to be uncertain as to the final
position the SPB would take." As such, Charging Party argues that the August 18, 2010
implementation date is when it had actual or constructive knowledge. 	Without making a
determination as to whether Charging Party satisfied its burden of establishing when it had
actual or constructive knowledge of the proposed regulation change, the amended charge is
analyzed solely under the theory of whether the SPB had a duty to bargain.

SA-CE-1896-S
Decembr 9, 2011
Page 3
(a) The [SPB] shall enforce the civil service statutes and, by
majority vote of all its members, shall prescribe probationary
periods and classifications, and adopt other rules authorized by
statute, and review disciplinary actions.
(b) The executive officer shall administer the civil service statues
under rules of the board.
Dills Act section 3512 states:
Nothing in this chapter shall be construed to contravene the spirit
or intent of the merit principle in state employment, nor to limit
the entitlements of state civil service empioyees, including those
designated as managerial and confidential, provided by Article
VII of the California Constitution or by laws or rules enacted
thereto.
As the California Supreme Court held, the Legislature fashioned the Dills Act "specifically to
avoid any conflict with [the] constitutional mandate [in Article VII]." 	(Pacific Legal
Foundation v. Brown (1981) 29 Cal.3d 168, 174.)
Citing Los Angeles County Civil Service Commission v. Superior Court of Los Angeles County
(1978) 23 Cal.3d 55 (Los Angeles ), Charging Party argues that it is well-established that
independent entities like the SPB are required to meet and confer over items within the
mandatory scope of bargaining. 	In Los Angeles, the Civil Service Commission was acting as a
third party hearing body changing its own internal regulations. 	(Ibid.) 	Nevertheless, the
California Supreme Court held that an independent, third party entity had an obligation to
bargain over the changes. (Ibid.)
However, Charging Party fails to address the California Supreme Court's holding in State
Personnel Board v. Department of Personnel Administration, et al. (2005) 37 Cal.4th 512. In
that case, the California Supreme Court further clarified this issue, specifically with respect to
the SPB, by stating that:
[A] state civil service based in merit principle can be achieved
only by developing and consistently applying uniform standards ·
for employee hiring, promotion, and discipline. 	By vesting in the
nonpartisan State Personnel Board the sole authority to
administer the state civil service system (Cal. Const., art. VII, §
3), our state Constitution recognizes.that this task must be
entrusted to a single agency, the constitutionally created State
Personnel Board. 	Because employee discipline is an integral part
of the civil service system, the State Personnel Board's exclusive

SA-CE-1896-S
December 9, 2011
Page 4
authority to review disciplinary decisions is a critical component
of the civil service system.
(Emphasis added.)
The Constitution expressly requires SPB to "adopt" and "administer" the "rules" necessary to
enforce the civil service statutes. Therefore, the SPB's action to revise its regulations in
. August 2010 was an act pursuant to its Constitutional mandate, and, as such, is not within the
scope of bargaining under the Dills Act.
Therefore, the charge is hereby dismissed based on the facts and reasons set forth herein and in
the October 18, 2011 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 Boar.cl
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, 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.)
The Board's address is:
Public Employment Relations Board
Attention: Appeals Assistant
I031 1 8th Street
Sacramento, CA 	95811-4124
(916) 322-8231
FAX: (916) 327-7960
3 PERB Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.

SA-CE-1896-S
December 9, 2011
Page 5
Ifyou 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 m ust 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
must be filed at least three (3) calendar days before the expiration of the time required for
filing' the document. The request must indicate good cause for and, if known, the position of
each other party regarding the extension; and shall be accompanied by proof of service of the
request upon each party. (Cal. Code Regs, tit. 8, § 32132.)
Final Date
If no appeal is filed within the specified time limits, the dismissal will become final when the
time limits have expired.
Sincerely,
SUZANNE MURPHY
General Counsel
By
Katharine Nyman
Regional Attorney
Katl{arine 	X 	an,
Regional Ai; omey
Attachment
cc: David M. Villalba, Legal Counsel
By~	______

STATE OF CALIFOR NIA 	EDMUND G. BROW N JR., Governor
PUBLIC EMPLOYMEN1 J{ELATIONS BOARD
. Sacramento Regional Office
I031 18th Street
Sacramento, CA 95811-4124
Telephone: (916) 327-8386
Fax:(916) 327-6377	PERB
October l 8i 2011
Gary M. Messing, Attorney .
Carroll, Burdick & McDonough, LLP
980 9th Street, Suite 380
Sacramento, CA 95814-2723
Re: 	CDF Firefighters v. State of California (Department of Forestry & Fire Protection,
State Personnel Board)
Unfair Practice Charge No. SA-CE-1896-S
WARNING LETTER
Dear Mr. Messing:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on February 17, 2011. The CDF Firefighters (CDFF or Charging
Party) alleges that the State of California (Department of Forestry & Fire Protection, State
Personnel Board) (State or Respondent) violated the Ralph C. Dills Act (Dills Act) 1 by
unilaterally changing a term and condition of employment without providing CDFF notice and
an opportunity to negotiate. 	Although the charge was filed against both the California
Department of Forestry & Fire Protection and the State Personnel Board, this letter will only
discuss the allegations as they relate to the State Personnel Board (SPB).
Factual Background as Alleged
On August 18, 2010, the SPB unilateraliy implemented changes to the California Code of
Regulations governing disciplinary hearings and appeals for State employees. 	Charging Party
alleges that SPB did not "meet and confer" with any of the impacted State bargaining units,
and did not engage in impasse procedures prior to implementation.
According to the charge, CDFF exchanged several letters with the SPB, including a June 30,
2010 letter which set forth CDFF's objections and assertions that SPB could not make its
proposed changes without bargaining 	CDFF followedup with SPB on October 6, 2010.
CDFF's objections essentially were that the proposed changes created an additional burden on
the appellant/employee and altered their fundamental due process rights. 	The changes
allegedly involved matters within the scope of bargaining that were raised in CDFF's letters to
SPB includii1g:
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. 	·

SA-CE-1896-S
October 18, 2011
Page 2
Rule No. 35.4
The new rule permits "the Board, the Executive Officer, or the
Chief ALJ [to] reassign an appeal to any process." This proposed
rule grants unrestricted authority to bypass the appellate
procedures otherwise called for (though limitations exist based on
the provisions of the FFBOR and the POER). Furthermore, there
is no stated time restriction, thus creating confusion and
uncertainty.
Rule No. 57.1
Subsection (:f), requires the parties to specifically identify
percipient witnesses, provide summaries of anticipated witness
testimony, disclose expert witnesses and their intended testimony,
identify planned exhibits, and summarize evidentiary issues
before the prehearing settlement conference. 	These requirements
are unduly burdensome and costly, particularly at this early stage
of the proceedings. 	This is especially burdensome on appellants
who may have just recently been provided with information and
evidence that their employers have been gathering for many
months. In light of the fact that subsection (:f)(9) allows the
exclusion of undisclosed evidence, we believe this raises serious
fairness and due process concerns.
The proposed mandatory disclosures would also require an
appellant to divulge his/her trial strategy, potentially abrogating
the attorney-client privilege and work product doctrine.
Rule No. 58.3 [ fOrmerl y Rule No. 52.2]
This revision requires, without exception, the dismissal of any
appeal not brought to hearing within three years of filing,
regardless of the cause of the delay. The prior version of the rule
permits an extension by stipulation. 	The inflexibility of the rule
is unnecessary and unreasonable. 	Exceptions allowing extensions
for demonstrated "good cause" and where bad faith obstruction
by the employer has delayed an appeal from proceeding to
hearing are called for.
Rule No. 59. l [ fOrmerl y Rule No. 57.2] ·
The rule contained a new restrictive time limitation on the right to
propound discovery (90 days from the filing of the appeal).

SA-CE-1896-S
October 18, 2011
Page 3
Rule No. 60.l
This rule requires motions to dismiss, strike, consolidate, or sever
be made no later than 90 days from the date of the appeal. On the
same day as the discovery deadline, meaning it would be highly
unlikely [that an] appellant would have received any discovery
responses by the time these motions are due. The rule also may
preclude a party from making a motion to dismiss upon the
completion of the employer's case in chief and may bar an
appellant from making a motion to strike during the course of a
he?.ring when it appears the employer will not put on sufficient
evidence to prove a charge.
On October 29, 2010, in response to the concerns raised in CDFF's June 30 and October 6,
2010 letters, SPB asserted that because it is aconstitutionally created agency established to
administer the state civil service system, its changes to the regulations "were not part of the
collective bargaining process." Rather, according to SPB, the changes were "enacted inthe
Board's capacity as the adjudicatory body and not as an employer or appointing authority."
The letter further stated that the changes do not deal with "wages, hours or other terms and
conditions of employment. . ." 	'
Discussion
PERB Regulation 32615(a)(5)2 requires, inter alia, that an unfair practice charge include a
"clear and concise statement of the facts and conduct alleged to constitute an unfair practice."
The charging party's burden includes alleging the "who, what, when, where and how" of an
unfair practice. 	(State of California (Department of Food and Agriculture) (1994) PERB
Decision No. 1071-S, citing United Teachers-Los Angeles (Ragsdale) (1992) PERB Decision
No. 944.) Mere legal conclusions are not sufficient to state a prima facie case. 	(Ibid.; Charter
Oak Unified School District (1991) PERB Decision No. 873.)
1. 	Unilateral Change
Charging Party alleges that the State is required to meet and confer with employee
organizations regarding rules governing grounds for disciplinary action, as well as the manner
in which disciplinary actions are to be heard, citing to Vernon Fire Fighters v. City of Vernon
(1980) 107 Cal.App.3d 802 and Sari Mateo City School District (1984) PERB Decision
No. 383. Therefore, the State should be required to meet and confer over any changes to
SPB's disciplinary appeal process.
2 PERB regulations are codified at California Code of Regulations, title 8, section
31001 et seq.

SA-CE-18 96-S
October 18, 2011
Page 4
Itis well-established that a refusal to bargain over matters within the scope of bargaining is a
per se violation of section 3519(c) of the Dills Act. However, unlike the above-cited cases, the
SBP has no duty to bargain because SPB acts pursuant to its constitutional mandate under
Article VII ofthe State Constitution.
Article VII, section 3 of the California Constitution states:
(a) The [SPB] shall enforce the civil service statutes and, by
majority vote of all its members, shall prescribe probationary
periods and classifications, and adopt other rules authorized by
statute, and review disciplinary actions.
(b) The executive officer shall administer the civil service statues·
under rules of the board.
Dills Act section 3512 states:
Nothing in this chapter shall be construed to contravene the spirit
or intent of the merit principle in state employment, nor to limit
the entitlements of state civil service employees, including those
designated as managerial and confidential, provided by Article
VII of the California Constitution or by laws or rules enacted
thereto.
As the California Supreme Court held, the Legislature fashioned the Dills Act "specifically to
avoid any conflict with [the] constitutional mandate [in Article VII]." (Pacific Legal
Foundation v. Brown (1981) 29 Ca1.3d 168, 174.)
InState Personnel Board v. Department of Personnel Administration, et al. (2005) 37 Cal.4th
512, the California Supreme Court further. clarified this issue by stating that:
[A] state civil service based in merit principle can be achieved
only by developing and consistently applying uniform standards
for employee hiring, promotion, and discipline. By vesting in the
nonpartisan State Personnel Board the sole authority to
administer the state civil service system (Cal. Const., art. VII, §
3), our state Constitution recognizes that this task must be
entrusted to a single agency, the constitutionally created State
Personnel Board. Because employee discipline is an integral part
of the civil service system, the State Personnel Board's exclusive
authority to review disciplinary decisions is a critical component
of the civil service system.
(Emphasis added.)

SA-CE-1896-S
October 18, 2011
Page 5
The Constitution expressly requires SPB to "adopt" and "administer" the "rules" necessary to
enforce the civil service statutes. 	It therefore appears that SPB's action to revise its regulations
in August 2010 was an act pursuant to its Constitutional mandate. 	Such conduct is not within
the scope of bargaining under the Dills Act.
2. 	Statute of Limitations
Further, a charging party's burden also includes alleging facts showing that the unfair practice
charge was timely filed; i.e., that the alleged unfair practice occurred no more than six months
prior to the filing of the charge. 	(Los Angeles Unified School District (2007) PERB Decision
No. 1929; City of Santa Barbara (2004) PERB Decision No. 1628-M.) PERB is prohibited
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. 	(Coachella Valley Mosquito
and Vector Control District v. Public Employment Relations Board (2005) 35 Cal.4th 1072.)
The limitations period begins to run once the charging party knows, or should have known, of
the conduct underlying the charge. 	( Gavilan Joint Community College District (1996) PERB
Decision No. 1177.)
In a unilateral change case, the statute of limitations begins to run on the date the charging
party has actual or constructive notice of the respondent's intent to implement a change in
policy. 	(County of Sonoma (2011) PERB Decision No. 2173-M; South Placer Fire Protection
District (2008) PERB Decision No. 1944-M.) Actual or constructive notice occurs when the
exclusive representative has knowledge of the proposed change. 	(State of California
(Department of Personnel Administration) (2008) PERB Decision No. 1978-S.)
The charge states that on August 18, 20 l 0, SPB unilaterally implemented changes to the ·
California Code of Regulations governing disciplinary hearings and appeals for State
employees. The charge also states that CDFF sent an initial letter setting forth CDFF's
objections and assertions that SPB could riot make its proposed changes without bargaining on
June 30, 2010; As presently written, it appears that CDFF had knowledge of SPB's intent to
modify its regulations as early as June 30, 2010. As stated above, the charging party 's burden
includes alleging the when of an unfair practice. (State of California (Department of Food and
Agriculture), supra, PERT? Decision No. 1071-S, citing United Teachers-Los Angeles
(Ragsdale), supra, PERB Decision No. 944.) Therefore, without more information
establishing when Charging Party had actual or constructive knowledg of the proposed
change, the charge fails to satisfy the Ragsdale burden, and thus fails to demonstrate a prima
facie violation. ( United Teachers-Los Angeles (Ragsdale), supra, PERB Decision No: 944.)

SA-CE-1896-S
October 18, 2011
Page 6
For these reasons the charge, as presently written, does not state a prima facie case.3 Ifthere
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 corner of the charge form. The amended charge must be
served on the respondent's representative and the original proof of service must be filed with
PERB. 	Ifan amended charge or withdrawal is not filed on or before November 1, 2011,4
PERB will dismiss your charge. If you have any questions, please call me at the above
telephone number.
Sincerely,
Katharine Nyman
Regional Attorney
KN
3 In Eastside Union School District (1984) PERB Decision No. 466, the Board
explained that a prima facie case is established where the Board agent is able to make
determination that the facts as alleged in the charge state a legal cause of action and that the
charging party is capable of providing admissible evidence in support of the allegations.
Consequently, where the investigation results in receipt of conflicting allegations of fact or
contrary th.eories of law, fair proceedings, if not due process, demand that a complaint be
issued and the matter be sent to formal headng." 	(Ibid.) 	·
4 A document is "filed" on the date the document is actually received by PERB,
including if transmitted via facsimile. (PERB Regulation 32135.)
Sincere]¥;
Katharin~man
Regional Art~