State of California (Department of Corrections) (PERB 1540S)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
JESSE VICKERS,
Charging Party,
V.
STATE OF CALIFORNIA (DEPARTMENT OF
CORRECTIONS),
Respondent.
Case No. LA-CE-595-S
PERB Decision No. 	1540-S
June 	30, 	2003
Appearances: Jesse Vickers on his own behalf; State of California (Department of Personnel
Administration) by Linda M. Nelson, Labor Relations Counsel, for State of California
(Department of Corrections).
Before Baker, Whitehead and Neima, Members.
DECISION
WHITEHEAD, Member: This case is before the Public Employment Relations Board
(PERB or Board) on appeal by Jesse Vickers (Vickers) of a Board agent's dismissal (attached)
of his unfair practice charge. The charge alleged that the State of California (Department of
Corrections) (Corrections) violated the Ralph C. Dills Act (Dills Act)1 by discriminating
against him for his activities as a job steward and for filing grievances. Vickers alleged that
this conduct constituted a violation of Dills Act section 3519(a).2 The Board agent deferred to
1The Dills Act is codified at Government Code section 3512 et seq. Unless otherwise
indicated, all statutory references are to the Government Code.
2Section 3 519( a) states, in pertinent part:
It shall be unlawful for the state to do any of the following:
(a) Impose or threaten to impose reprisals on employees, to
discriminate or threaten to discriminate against employees, or

arbitration and dismissed the charge because the issues underlying the charge met the standards
set forth in Dry Creek Joint Elementary School District (1980) PERB Order No. Ad-81, State
of California (Department of Food and Agriculture) (2002) PERB Decision No. 1473-S.
After review of the entire record including the unfair practice charge and amended
charge, Corrections' position statement, the warning and dismissal letters, and Vickers' appeal,
the Board adopts the Board agent's dismissal.
ORDER
The unfair practice charge in Case No. LA-CE-595-S is hereby DISMISSED
WITHOUT LEAVE TO AMEND.
Members Neima and Baker joined in this Decision.
otherwise to interfere with, restrain, or coerce employees because
of their exercise of rights guaranteed by this chapter. For
purposes of this subdivision, "employee" includes an applicant
for employment or reemployment.
2

_S_T_A_T_E_O_F_C_AL_IF_O_RN_IA
_	
GRAY
DA
VIS, Governor	
____
PUBLIC EMPLOYMENT RELATIONS BOARD
f
Sacramento Regional Office
I
031
18th Street
Sacramento, CA 95814-4174
Telephone: (916) 327-8386
Fax: (916) 327-6377
December 20, 2002
Jesse Vickers
PO
Box 7506
La Verne, CA 91750
Re: 	Jesse Vickers
v.
State
of
California (Department
of
Corrections)
Unfair Practice Charge No. LA-CE-595-S
NOTICE OF DISMISSAL AND DEFERRAL TO ARBITRATION
Dear Mr. Vickers:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on November 14, 2002. Jesse Vickers alleges that the State
of
California (Department
of
Corrections) violated the Ralph
C.
Dills Act (Dills Act)1 by
discriminating against him because
of
his activities as a job steward.
I indicated in the attached letter dated December 11, 2002, that this charge was subject to
deferral to arbitration. You were advised that ifthere were any factual inaccuracies or
additional facts which would correct the deficiencies explained in that letter, the charge should
be amended. You were further advised that unless the charge was amended or withdrawn prior
to December 18, 2002, it would be deferred to arbitration and dismissed.
I received your amended charge by fax on December 16, 2002. You attached a document that
you state demonstrates that it is futile to attempt to proceed on your grievances. That
document is a summary that you wrote
of
a meeting with CCPOA officials in January 2001.
You state that the document demonstrates that CCPOA will not proceed to arbitration on your
gnevances.
However, the January 2001 meeting did not address grievances that contain the allegations in
your current unfair practice charge. The issues involved in this charge occurred from June
through September 2002. As we have discussed, you may be able to demonstrate that you
have exhausted the grievance procedure should CCPOA determine not to take the current
issues to arbitration. At that time, you may again file your unfair practice charge.
Your amended charge also states that management at the California Department of Corrections
chose not to process your current grievances and allowed the timelines to expire in violation of
the MOU between the State employer and CCPOA.
1 The Dills Act is codified at Government Code section 3512 et seq. The text of the
Dills Act and the Board's Reguiations may be found on the Internet at www.perb.ca.gov.

LA-CE-595-S
December 20, 2002
Page 2
As explained in my letter
of
December 11, PERB will not defer an unfair practice charge to the
grievance and arbitration procedure unless an employer has agreed to waive procedural
defenses. In this case, the employer has so agreed and you have received a written copy
of
that
commitment. Accordingly, the employer must be provided an opportunity to allow you to
proceed under the grievance procedure. Should the employer not waive procedural procedures
as it has committed, you may again file your unfair practice charge.
Based on the facts and reasons described in this letter and contained in my letter
of
December
11, this unfair practice charge must be dismissed.
As I explained in the attached letter, Government Code section 3514.5(a) and PERB
Regulation 32620(b)( 5) require a Board agent to dismiss a charge where the dispute is subject
to final and binding arbitration pursuant to a collective bargaining agreement. (Dry Creek Joint
Elementary School District (1980) PERB Order No. Ad-81; State
of
California (Department
of
Food and Agriculture) (2002) PERB Decision No. 1473-S.) The charge alleges that your
employer has discriminated against you because
of
your activity as a union job steward. 	This
conduct is covered by the parties' collective bargaining agreement, the Respondent has agreed
to waive any procedural defenses, and there is no evidence that the dispute arises in other than
a stable collective bargaining environment. Accordingly, the charge must be dismissed and
deferred to arbitration. Following the arbitration
of
this matter, the Charging Party may seek a
repugnancy review by PERB
of
the arbitrator's decision under the Dry Creek criteria. (See
Regulation 32661; Los Angeles Unified School District (1982) PERB Decision No. 218; Dry
Creek Joint Elementary School District (1980) PERB Order No. Ad-8la.)2
Right to Appeal
Pursuant to PERB Regulations,3 you 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. (Regulation 32635(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 before the close
of
business (5 p.m.)
on the last day set for filing or when mailed by certified or Express United States mail, as
shown on the postal receipt or postmark, or delivered to a common carrier promising overnight
deiivery, as shown on the carrier's receipt, not later than the last day set for filing.
(Regulations 32135(a) and 32130.)
Pursuant to Government Code section 3514.S(a), the six-month limitation on the filing
of a charge is tolled during the time required to exhaust the grievance machinery where that
procedure ends in binding arbitration.
3 PERB's Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.

LA-CE-595-S
December 20, 2002
Page 3
•
,r.
A document is also considered "filed" when received by facsimile transmission before the
close
of
business on the last day for filing together with a Facsimile Transmission Cover Sheet
which meets the requirements
of
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.
(Regulations 32135(b), (c) and (d); see also Regulations 32090 and 32130.)
The Board's address is:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95814-4174
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. (Regulation 32635(b).)
Service
All documents authorized to be filed herein must also be "served" upon all parties to the
proceeding, and a "proof
of
service" must accompany each copy
of
a document served upon a
party or filed with the Board itself. (See Regulation 32140 for the required contents and a
sample form.) The document will be considered properly "served" when personally delivered
or deposited in the first-class mail, postage paid and properly addressed. A document filed by
facsimile transmission may be concurrently served via facsimile transmission on all parties to
the proceeding. (Regulation 32135(c).)
Extension
of
Time
A request for an extension
of
time, in which to file a document with the Board itself, must be
in writing and filed with the Board at the previously noted address. A request for an extension
must be filed at least three (3) calendar days before the expiration
of
the time required for
filing the document. The request must indicate good cause for and,
if
known, the position of
each other party regarding the extension, and shall be accompanied by proof
of
service
of
the
request upon each party. (Regulation 32132.)
Final Date
If
no appeal is filed within the specified time limits, the dismissal will become final when the
time limits have expired.

LA-CE-595-S
December 20, 2002
Page 4
Sincerely,
ROBERT THOMPSON
General Counsel
By BJ?Lornt:11 ?Q
Regional Attorney
Attachment
cc: Linda Nelson

. ,._
STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
I 031 18th Street
Sacramento, CA 95814-417 4
Telephone: (916) 327-8386
Fax: (916) 327-6377
December 11, 2002
Jesse Vickers
PO Box 7506
La Verne, CA 91750
Re: 	Jesse Vickers v. State of California (Department of Corrections)
Unfair Practice Charge No. LA-CE-595-S
WARNING LETTER (DEFERRAL TO ARBITRATION)
Dear Mr. Vickers:
GRAY DA VIS, Governor
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on November 14, 2002. The Jesse Vickers alleges that the State of
California (Department of Corrections) violated the Ralph C. Dills Act (Dills Act)1 by
discriminating against you because of your activities as a job steward.
Your charge alleges that between June and September 2002, the Department of Corrections
took several actions against you in retaliation for your activities as a job steward for the
California Correctional Peace Officers Association.
The current collective bargaining agreement between CCPOA and the state is effective 2001 to
2006. That agreement, at section 5.03 prohibits the employer from taking reprisals against
employees because of their union activity. At section 5.03.A the contract states, "The State
and the Union shall not impose or threaten to impose reprisals on employees, to discriminate or
threaten to discriminate ... " against employees "because of their exercise of rights guaranteed
by the Ralph C. Dills Act". Article VI of that agreement contains a grievance procedure that
ends in binding arbitration.
Based on these facts and Dills Act section 3514.5, this charge must be deferred to arbitration
under the MOU and dismissed in accordance with PERB Regulation 32620(b)(5).
Section 3514.5(a) of the Dills Act states, in pertinent part, that PERB shall not:
Issue a complaint against conduct also prohibited by the
provisions of the [collective bargaining] agreement between the
parties until the grievance machinery of the agreement, if it exists
and covers the matter at issue, has been exhausted, either by
settlement or binding arbitration.
The Dills Act is codified at Government Code section 3512 et seq. The text of the
Dills Act and the Board's Regulations may be found on the Internet at www.perb.ca.gov.

LA-CE-595-S
December
11,
2002
Page 2
.
,,._
In Dry Creek Joint Elementary School District (1980) PERB Order No. Ad-81a, the Board
explained that:
While there is no statutory deferral requirement imposed on the
National Labor Relations Board (hereafter NLRB), that agency
has voluntarily adopted such a policy both with regard to post-
arbitral and pre-arbitral award situations. 2 BERA
section 3541.5(a) essentially codifies the policy developed by the
NLRB regarding deferral to arbitration proceedings and awards.
It is appropriate, therefore, to look for guidance to the private
sector. 	[Fn. 2 omitted; fn. 3 to Fire Fighters Union
v.
City
of
Vallejo (1974) 12 Cal.3d 608.J
Although Dry Creek was decided under the Educational Employment Relations Act2 the NLRB
deferral standard has also been applied to the Dills Act. (State
of
California (Department
of
Food and Agriculture) (2002) PERB Decision No. 1473-S.)
In Collyer Insulated Wire (1971) 192 NLRB 837 [77 LRRM 1931] and subsequent cases, the
National Labor Relations Board articulated standards under which deferral to the contractual
grievance procedure is appropriate in prearbitral situations. These requirements are: 	(1) the
dispute must arise within a stable collective bargaining relationship where there is no enmity
by the respondent toward the charging party; (2) the respondent must be ready and willing to
proceed to arbitration and must waive contract-based procedural defenses; and (3) the contract
and its meaning must lie at the center
of
the dispute.
These standards are met with respect to this case. First, no evidence has been produced to
indicate that the parties are not operating within a stable collective bargaining relationship.
Second, by the attached letter from its representative, Linda Nelson, dated December 9, 2002,
the Respondent has indicated its willingness to proceed to arbitration and to waive all
procedural defenses. Finally, the issue raised by this charge that the employer illegally
discriminated against you directly involves an interpretation
of
section 5.3
of
the MOU.
Accordingly, this charge must be deferred to arbitration and will be dismissed. Following the
arbitration of this matter, the Charging Party may seek a repugnancy review by PERB
of
the
arbitrator's decision under the Dry Creek criteria. (See Regulation 32661; Los Angeles Unified
School District (1982) PERB Decision No. 218; Dry Creek Joint Ele
supra.)
mentary School District,
3
The Educational Employment Relations Act is codified at Government Code section
3540 et seq.
3 Pursuant to Government Code section 3514.5(a), the six-month limitation on the filing
of a charge is tolled during the time required to exhaust the grievance machinery where that
procedure ends in binding arbitration.

LA-CE-595-S
December 11, 2002
Page 3
.
,('.
If
there are any factual inaccuracies in this letter or additional facts that would correct the
deficiencies explained above, please amend the charge. The amended charge should
be
prepared on a standard PERB unfair practice charge form, clearly labeled First Amended
Charge, contain all the facts and allegations you wish to make, and be signed under penalty
of
perjury by the charging party. The amended charge must have the case number written on the
top right hand 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
I do
not receive an amended charge or withdrawal from you before December 18, 2002, I shall
dismiss your charge.	
If
you have any questions, please call me at the above telephone number.
Sincerely,
Bernard McMonigle
Regional Attorney
Attachment