State of California (Department of Forestry and Fire Protection, State Personnel Board) (PERB 2317SA)

. STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
CDF FIREFIGHTERS,
Charging Party,
v.
STATE OF CALIFORNIA (DEPARTMENT OF
FORESTRY & FIRE PROTECTION, STATE
PERSONNEL BOARD),
Respondent.
Case No. SA-CE-1896-S
Remand from Court
PERB Decision No. 2317a-S
December 19, 2014
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 remand by the Superior Court of California (Court) in and for Sacramento
County after the CDF Firefighters (CDFF) filed a petition for writ of mandate requesting that
State of California (Department of Forestry & Fire Protection, State Personnel Board) (2013)
PERB Decision No. 2317-S (State of California) be vacated and that PERB be directed to issue
a complaint against the State Personnel Board (SPB) for refusing to meet and confer with
CDFF over proposed amendments to regulations concerning disciplinary hearing and appeal
procedures. In State of California, PERB upheld the dismissal of an unfair practice charge
alleging that the SPB violated the Ralph C. Dills Act (Dills Act)1 by unilaterally changing
1 The Dills Act is codified at Government Code section 3512 et seq.
STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
CDF FIREFIGHTERS,
Charging Party, 	Case No. SA-CE-1896-S
V . 	Remand from Court
STATE OF CALIFORNIA (DEPARTMENT OF 	PERB Decision No. 2317a-S
FORESTRY & FIRE PROTECTION, STATE December 19, 2014	PERSONNEL BOARD),
Respondent.
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 remand by the Superior Court of California (Court) in and for Sacramento
County after the CDF Firefighters (CDFF) filed a petition for writ of mandate requesting that
State of California (Department of Forestry & Fire Protection, State Personnel Board) (2013)
PERB Decision No. 2317-S (State of California) be vacated and that PERB be directed to issue
a complaint against the State Personnel Board (SPB) for refusing to meet and confer with
CDFF over proposed amendments to regulations concerning disciplinary hearing and appeal
procedures. In State of California, PERB upheld the dismissal of an unfair practice charge
alleging that the SPB violated the Ralph C. Dills Act (Dills Act)' by unilaterally changing
The Dills Act is codified at Government Code section 3512 et seq.

disciplinary hearing and appeal procedures applicable to all state civil service employees
without meeting and conferring with CDFF.
Pursuant to the Court's order, State
of
California, supra, PERB Decision No. 2317-S is
hereby vacated and set aside and replaced with this decision.
PROCEDURAL HISTORY
Summary
of
Allegations2
CDFF alleged that on August 18, 2010, the SPB unilaterally implemented changes in
the California Code
of
Regulations governing disciplinary 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	The adopted changes to the regulations touched on such matters as the authority of SPB
to bypass appellate procedures, pre-trial disclosures
of
witnesses and testimony summary, a
time limit for bringing cases to hearing, and time limits on propounding discovery requests.
CDFF filed a timely unfair practice charge on February 11, 2011.
Dismissal
of
the Unfair Practice Charge by the PERB Office
of
the General Counsel
The Office of the General Counsel dismissed the unfair practice charge based on its
reading
of
State Personnel Bd.
v.
Department
of
Personnel Admin. (2005) 37 Cal.4th 512
(DP
A),
which invalidated provisions in the memoranda
of
understanding that established
review boards to adjudicate certain disciplinary actions. These provisions violated Article VII,
2 At this stage of the proceedings, we assume that the essential facts alleged in the
unfair practice charge are true. (Temple City Unified School District (1990) PERB Decision
No. 843; Trustees
of
the California State University (Sonoma) (2005) PERB Decision
No. 1755.)
2
disciplinary hearing and appeal procedures applicable to all state civil service employees
without meeting and conferring with CDFF.
Pursuant to the Court's order, State of California, supra, PERB Decision No. 2317-S is
hereby vacated and set aside and replaced with this decision.
PROCEDURAL HISTORY
Summary of Allegations
CDFF alleged that on August 18, 2010, the SPB unilaterally implemented changes in
the California Code of Regulations governing disciplinary 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."
to bypass appellate procedures, pre-trial disclosures of witnesses and testimony summary, a
time limit for bringing cases to hearing, and time limits on propounding discovery requests.
CDFF filed a timely unfair practice charge on February 11, 2011.
Dismissal of the Unfair Practice Charge by the PERB Office of the General Counsel
The Office of the General Counsel dismissed the unfair practice charge based on its
reading of State Personnel Bd. v. Department of Personnel Admin. (2005) 37 Cal.4th 512
(DPA), which invalidated provisions in the memoranda of understanding that established
review boards to adjudicate certain disciplinary actions. These provisions violated Article VII,
2 At this stage of the proceedings, we assume that the essential facts alleged in the
unfair practice charge are true. (Temple City Unified School District (1990) PERB Decision
No. 843; Trustees of the California State University (Sonoma) (2005) PERB Decision
No. 1755.)
2

Section 3
of
the 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, p. 527; emphasis in original.)
The Office
of
the General Counsel reasoned that 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, revision
of
SPB regulations governing disciplinary hearing and appeal
procedures was "an act pursuant to its Constitutional mandate, and, as such, is not within the
scope
of
bargaining under the Dills Act."
CDFF timely appealed this dismissal to the Board itself.
Positions
of
the Parties on Appeal to the Board Itself
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 invited us to
harmonize the 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
3
Section 3 of the 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, p. 527; emphasis in original.)
The Office of the General Counsel reasoned that 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, revision of SPB regulations governing disciplinary hearing and appeal
procedures was "an act pursuant to its Constitutional mandate, and, as such, is not within the
scope of bargaining under the Dills Act."
CDFF timely appealed this dismissal to the Board itself.
Positions of the Parties on Appeal to the Board Itself
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 invited us to
harmonize the 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
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
3

actions.	
It
would simply have to negotiate with the "impacted representatives" before making
such changes.
In opposing the appeal, the State
of
California (State) asserted four reasons supporting
the dismissal
of
the charge. First, requiring SPB to negotiate over disciplinary hearing and
appeal procedures would interfere with its constitutional authority because the regulations are
part
of
how disciplinary hearings and appeals are managed. Los Angeles County, supra, 23
CaL3d 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, disciplinary hearing and appeal procedures in
general are governed by statutes, rather than by a collective bargaining agreement or
memorandum
of
understanding. 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 urged that the appeal be dismissed because the unfair practice
charge was untimely.
It
asserted 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."
PERB Decision No. 2317-S
On June 17, 2013, the Board issued its initial decision in this case, upholding the
dismissal, but for different reasons than those relied on by the Office
of
the General Counsel,
namely on statutory, rather than constitutional grounds. After a review of various provisions
of the Dills Act, the Board concluded that "the Legislature did not intend to impose on SPB a
4
actions. It would simply have to negotiate with the "impacted representatives" before making
such changes.
In opposing the appeal, the State of California (State) asserted four reasons supporting
the dismissal of the charge. First, requiring SPB to negotiate over disciplinary hearing and
appeal procedures would interfere with its constitutional authority because the regulations are
part of how disciplinary hearings and 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, disciplinary hearing and appeal procedures in
general are governed by statutes, rather than by a collective bargaining agreement or
memorandum of understanding. 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 urged that the appeal be dismissed because the unfair practice
charge was untimely. It asserted 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."
PERB Decision No. 2317-S
On June 17, 2013, the Board issued its initial decision in this case, upholding the
dismissal, but for different reasons than those relied on by the Office of the General Counsel,
namely on statutory, rather than constitutional grounds. After a review of various provisions
of the Dills Act, the Board concluded that "the Legislature did not intend to impose on SPB a

duty to bargain with exclusive representatives of employees other than those of SPB." (State
of California, supra, PERB Decision No. 2317-S, p. 7.)
CDFF filed a petition for writ of mandate in superior court, contending that PERB's
decision was clearly erroneous within the meaning of International Assn. of Fire Fighters,
Local 188, AFL-CIO v. Public Employment Relations Board, City of Richmond (2011)
51 Cal.4th 259. The CDFF urged the court to vacate PERB's decision and to direct PERB to
issue a complaint that the SPB had committed an unfair practice by changing its disciplinary
regulations without meeting and conferring with the CDFF.
Decision of the Superior Court
The Court determined that although PERB's conclusion that the SPB could not be
liable for failing to bargain with the CDFF over its disciplinary regulations was not clearly
erroneous, PERB's reasoning was in error. The Court noted: "Had PERB followed the
reasoning of its prior decision in Gonzales-Coke, that conclusion [that the SPB was not acting
as "the state" when it promulgated the regulations in question] would not be clearly
erroneous."
The Court remanded the case to PERB to issue a new decision in light of the Court's
DISCUSSION
The issue before us is whether the SPB is obliged to meet and confer with an employee
organization prior to amending or promulgating regulations pertaining to civil service
employees of the State of California. For reasons explained below, we conclude that the SPB
is not required to bargain with any employee organization over the regulations at issue in this
5
duty to bargain with exclusive representatives of employees other than those of SPB." (State
of California, supra, PERB Decision No. 2317-S, p. 7.)
CDFF filed a petition for writ of mandate in superior court, contending that PERB's
decision was clearly erroneous within the meaning of International Assn. of Fire Fighters,
Local 188, AFL-CIO v. Public Employment Relations Board, City of Richmond (2011)
51 Cal.4th 259. The CDFF urged the court to vacate PERB's decision and to direct PERB to
issue a complaint that the SPB had committed an unfair practice by changing its disciplinary
regulations without meeting and conferring with the CDFF.
Decision of the Superior Court
The Court determined that although PERB's conclusion that the SPB could not be
liable for failing to bargain with the CDFF over its disciplinary regulations was not clearly
erroneous, PERB's reasoning was in error. The Court noted: "Had PERB followed the
reasoning of its prior decision in Gonzales-Coke, that conclusion [that the SPB was not acting
as "the state" when it promulgated the regulations in question] would not be clearly
erroneous."
The Court remanded the case to PERB to issue a new decision in light of the Court's
judgment. CDFF's request that PERB be directed to find that the SPB committed an unfair
practice when it failed to bargain with CDFF before promulgating its amended regulations was
denied.
judgment. CDFF's request that PERB be directed to find that the SPB committed an unfair
practice when it failed to bargain with CDFF before promulgateng its amended regulations was
denied.
DISCUSSION
The issue before us is whether the SPB is obliged to meet and confer with an employee
organization prior to amending or promulgateng regulations pertaining to civil service
employees of the State of California. For reasons explained below, we conclude that the SPB
is not required to bargain with any employee organization over the regulations at issue in this

case. Because we uphold the dismissal
of
this charge on the ground that the SPB does not have
a duty to meet and confer over its proposed rules concerning disciplinary hearings and appeals,
we do not address the other arguments raised by the State.
The SPB is a constitutionally created agency charged with administering the state civil
service system. Article VII, Section 3
of
the California Constitution grants to the SPB
authority to enforce the civil service statutes, "prescribe probationary periods and
classifications, and adopt other rules authorized by statute, and review disciplinary actions."
The California Supreme Court has noted that the Dills Act was fashioned "specifically to avoid
any conflict with [the] constitutional mandate in [Article VII.]". (Pacific Legal Foundation
v.
Brown (1981) 29 Cal.3d 168, 174.)3 Later, inDPA, supra, 37 Cal.4th 512, 526-527, the state
Supreme Court underscored the role
of
the SPB:
[A] state civil service based on the 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 [cite
omitted], 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 in original.)
Although the SPB is vested with regulatory authority to administer the civil service
system and adopt rules related to its enforcement and oversight
of
the civil service statutes,
3 The relevant section
of
the Dills Act section 3512 reads, in pertinent part:
Nothing in this chapter shall be construed to contravene the spirit
or intent of the merit principle in state employment, not to limit
the entitlements of state civil service employees,
...
provided by
Article VII of the California Constitution or by laws or rules
enacted thereto.
6
case. Because we uphold the dismissal of this charge on the ground that the SPB does not have
a duty to meet and confer over its proposed rules concerning disciplinary hearings and appeals,
we do not address the other arguments raised by the State.
The SPB is a constitutionally created agency charged with administering the state civil
service system. Article VII, Section 3 of the California Constitution grants to the SPB
authority to enforce the civil service statutes, "prescribe probationary periods and
classifications, and adopt other rules authorized by statute, and review disciplinary actions."
The California Supreme Court has noted that the Dills Act was fashioned "specifically to avoid
any conflict with [the] constitutional mandate in [Article VII.]" (Pacific Legal Foundation v.
Brown (1981) 29 Cal.3d 168, 174.) Later, in DPA, supra, 37 Cal.4th 512, 526-527, the state
Supreme Court underscored the role of the SPB:
[A] state civil service based on the 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 [cite
omitted], 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 in original.)
Although the SPB is vested with regulatory authority to administer the civil service
system and adopt rules related to its enforcement and oversight of the civil service statutes,
The relevant section of the Dills Act section 3512 reads, in pertinent part:
Nothing in this chapter shall be construed to contravene the spirit
or intent of the merit principle in state employment, not to limit
the entitlements of state civil service employees, . . . provided by
Article VII of the California Constitution or by laws or rules
enacted thereto.
6

PERB has held that SPB may be subjected to unfair practice charges in certain circumstances.
(State of California (State Personnel Board) (2006) PERB Decision No. 1864-S (SPB), p. 23
["SPB, as a State agency, is subject to the Dills Act section 3519"]. )4 In SP B, the 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 3 519(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 in the circumstances
alleged on a case-by-case basis. For the reasons below, we hold that the SPB does not have
such a duty in this instance.
The Dills Act uses three different terms to refer to state management entities.
Section 3513G) defines '"[s]tate employer,' or 'employer,' for the purposes of bargaining or
meeting and conferring in good faith, [as] the Governor or his or her designated
representatives." (Emphasis added.) As the Board noted in SPB, supra, PERB Decision
No. 1864-S, 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 SPB 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).
Even though 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 3 519(c) when the appointing authority makes a unilateral
4 Dills Act section 3519 sets forth and defines unfair practices by "the state."
7
PERB has held that SPB may be subjected to unfair practice charges in certain circumstances.
(State of California (State Personnel Board) (2006) PERB Decision No. 1864-S (SPB), p. 23
["SPB, as a State agency, is subject to the Dills Act section 3519"].)" In SPB, the 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 in the circumstances
alleged on a case-by-case basis. For the reasons below, we hold that the SPB does not have
such a duty in this instance.
The Dills Act uses three different terms to refer to state management entities.
Section 3513(j) defines "[s]tate employer,' or "employer,' for the purposes of bargaining or
meeting and conferring in good faith, [as] the Governor or his or her designated
representatives." (Emphasis added.) As the Board noted in SPB, supra, PERB Decision
No. 1864-S, 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 SPB concluded, these two sections 3519 and 3513(j) 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 3513(j).
Even though 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
* Dills Act section 3519 sets forth and defines unfair practices by "the state."
7

change in terms and conditions
of
employment
of
its own employees. (State
of
Californi
(Department
of
Mental Health) (1990) PERB Decision No. 840-S [Department
of
Menta
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.
13
74-S [Department
of
Youth Authority found liable for unilateral change in released time
policy]; State o/California (Department o/Corrections) (2000) PERB Decision No. 1381-S
[Department
of
Corrections found liable for failing to negotiate over safety effects
of
staff
reduction in prison library].)5
a
l
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 employee organizations when it is exercising its
regulatory function, as opposed to acting as an employer or appointing authority
of
its own
employees. 6
PERB has recognized that an agency must be acting in its role as an "employer" or
"appointing authority" in order to be subject to the Dills Act. In California State Employees
5 PERB has also exercised jurisdiction over allegations that individual state agencies
have violated section 3519(a) or (b). (State o/California (Department a/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].)
6 "State," as opposed to "state employer," is not defined in the Dills Act. But "state" is
defined in Dills Act section 3527(a), (Excluded Employees Bill of Rights) as including "those
state agencies, boards, and commissions as may be designated by law that employ civil service
employees." California Code of Civil Procedure, section 341.5 also defines "State of
California" as the state itself, "or any of its agencies, departments, commissions, boards, or
public officials."
8
change in terms and conditions of employment of its own employees. (State of California
(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 [Department of Youth Authority found liable for 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 library].)
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) [refuse 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 employee organizations when it is exercising its
regulatory function, as opposed to acting as an employer or appointing authority of its own
employees."
PERB has recognized that an agency must be acting in its role as an "employer" or
"appointing authority" in order to be subject to the Dills Act. In California State Employees
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].)
"State," as opposed to "state employer," is not defined in the Dills Act. But "state" is
defined in Dills Act section 3527(a), (Excluded Employees Bill of Rights) as including "those
state agencies, boards, and commissions as may be designated by law that employ civil service
employees." California Code of Civil Procedure, section 341.5 also defines "State of
California" as the state itself, "or any of its agencies, departments, commissions, boards, or
public officials."

Association (Gonzales-Coke, et al.) (2000) PERB Decision No. 1411-S (Gonzales-Coke),
PERB held the Board itself does not fall within the definition
of
the "state'' as that term is used
in the Dills Act. As the Board explained: "Section 3512 shows that the 'state,' for purposes
of
application
of
the Dills Act, pertains to the state as an employer.7 It does not pertain to all
agencies
of
the state, such as PERB, which may jurisdictionally interface with either the state
as an employer or with state employee organizations." (Gonzales-Coke, pp. 17-18.)
Certain state agencies, such as the SPB, act as both employers and as regulators
of
various aspects
of
state employment. But as Gonzales-Coke teaches, when the agency acts in
its regulatory role, it is not acting as a state employer within the meaning
of
the Dills Act,
section 3513
G),
and it therefore cannot violate section 3 519 when performing its duties as
regulator.
According to the facts alleged in this case, when SPB adopted regulations regarding
disciplinary procedures for civil service employees, it was acting in its regulatory role to
administer the civil service system, specifically regarding discipline hearings and appeal
procedures. The SPB's rules adopted in this case applied to all state civil service employees,
not only to its own or to the employees represented by the CDFF. Because discipline is "an
integral part
of
the civil service system," regulatory uniformity is required. The need for
7 Section 3 512 states, in relevant part:
It is the purpose
of
this chapter to promote full communication
between the state and its employees by providing a reasonable
method of resolving disputes regarding wages, hours and other
terms and conditions of employment between the state and public
employee organizations.
9
Association (Gonzales-Coke, et al.) (2000) PERB Decision No. 1411-S (Gonzales-Coke),
PERB held the Board itself does not fall within the definition of the "state" as that term is used
in the Dills Act. As the Board explained: "Section 3512 shows that the 'state,' for purposes of
application of the Dills Act, pertains to the state as an employer.' It does not pertain to all
agencies of the state, such as PERB, which may jurisdictionally interface with either the state
as an employer or with state employee organizations." (Gonzales-Coke, pp. 17-18.)
Certain state agencies, such as the SPB, act as both employers and as regulators of
various aspects of state employment. But as Gonzales-Coke teaches, when the agency acts in
its regulatory role, it is not acting as a state employer within the meaning of the Dills Act,
section 3513(j), and it therefore cannot violate section 3519 when performing its duties as
regulator.
According to the facts alleged in this case, when SPB adopted regulations regarding
disciplinary procedures for civil service employees, it was acting in its regulatory role to
administer the civil service system, specifically regarding discipline hearings and appeal
procedures. The SPB's rules adopted in this case applied to all state civil service employees,
not only to its own or to the employees represented by the CDFF. Because discipline is "an
integral part of the civil service system," regulatory uniformity is required. The need for
Section 3512 states, in relevant part:
It is the purpose of this chapter to promote full communication
between the state and its employees by providing a reasonable
method of resolving disputes regarding wages, hours and other
terms and conditions of employment between the state and public
employee organizations.

uniformity is simply not compatible with a duty to negotiate with the
21
separate bargaining
units currently recognized under the Dills Act. 8
For these reasons, and based on Gonzales-Coke, supra, PERB Decision No. 1411-S, we
conclude that the SPB has no duty to bargain over its proposed amendments to its rules
regarding disciplinary procedures for civil service employees because by adopting those rules,
the SPB was acting in its capacity as regulator
of
state employment, and not as a "state
employer."
ORDER
The Public Employment Relations Board hereby VACATES AND SETS ASIDE State
of
California (Department
of
Forestry & Fire Protection, State Personnel Board) (2013)
PERB Decision No. 2317-S. 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.
8 We hereby take official notice of PERB's Dills Act representation files. (San Ysidro
School District (1997) PERB Decision No. 1198, p. 3 [it is well-settled that the Board may
take official notice of its own records].)
uniformity is simply not compatible with a duty to negotiate with the 21 separate bargaining
units currently recognized under the Dills Act.
For these reasons, and based on Gonzales-Coke, supra, PERB Decision No. 1411-S, we
conclude that the SPB has no duty to bargain over its proposed amendments to its rules
regarding disciplinary procedures for civil service employees because by adopting those rules,
the SPB was acting in its capacity as regulator of state employment, and not as a "state
employer."
ORDER
The Public Employment Relations Board hereby VACATES AND SETS ASIDE State
of California (Department of Forestry & Fire Protection, State Personnel Board) (2013)
PERB Decision No. 2317-S. 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.
We hereby take official notice of PERB's Dills Act representation files. (San Ysidro
School District (1997) PERB Decision No. 1198, p. 3 [it is well-settled that the Board may
take official notice of its own records].)
10