State of California (Department of Personnel Administration) (PERB 2018S)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
CORRECTIONAL PEACE
OFFICERS ASSOCIATION,
Charging Party,
V.
STATE OF CALIFORNIA (DEPARTMENT OF
PERSONNEL ADMINISTRATION),
Respondent.
Case No. SA-CE-1667-S
PERB Decision No. 	2018-S
April 7, 2009
Appearances: 	Suzanne L. Branine, Staff Counsel, for California Correctional Peace Officers
Association; Paul M. Starkey, Assistant Chief Counsel, for State
of
California (Department
of
Personnel Administration).
Before McKeag, Wesley and Dowdin Calvillo, Members.
DECISION
McKEAG, Member: 	This case comes before the Public Employment Relations Board
(PERB or Board) on appeal by the California Correctional Peace Officers Association
(CCPOA)
of
a Board agent's dismissal. 	The unfair practice charge filed on March 14, 2008,
alleged that the State
of
California (Department
of
Personnel Administration) (DP A or State)
violated section 3519(c)
of
the Ralph
C.
Dills Act (Dills Act)1 by refusing to increase the
business-related automobile travel reimbursement rate for employees in State Bargaining Unit
6 following an increase to the Federal Standard Mileage Rate (FSMR).
The Board has reviewed the entire record in this matter. 	Based on this review, we
conclude the dismissal of this case was proper for the reasons set forth below.
1 The Dills Act is codified at Government Code section 3 512 et seq. Unless otherwise
indicated, all statutory references herein are to the Government Code.

CCPOA represents employees in State Bargaining Unit 6. The parties' collective
bargaining agreement (CBA) expired July 30, 2006. Negotiations on a successor agreement
stalled, and the parties eventually reached impasse. Accordingly, on September 18, 2007, the
State notified CCPOA that, pursuant to section 3517.8 of the Dills Act, the State was
implementing its last, best and final offer (LBFO).
The expired CBA required the State to reimburse employees for business-related
automobile travel at "34 cents per mile." The LBFO struck the phrase "34 cents per mile" and
instead provided that employees will be reimbursed for business-related automobile travel at
the FSMR. 	On or about January 1, 2008, the FSMR increased to 50.5 cents per mile.
On December 14, 2007, DP A issue the following announcement:
Effective January 1, 2008, all State employees, except those
represented by Bargaining Unit 6, may claim mileage
reimbursement at the rate of 50.5 cents per mile (CPM) when
using their personal vehicle for authorized State business.
CCPOA contends that DP A's failure to increase the reimbursement rate for employees
in Unit 6 to the current FSMR was not reasonably comprehended in the LBFO and, therefore,
constitutes an unfair labor practice.
DISCUSSION
In Public Employment Relations Bd. v. Modesto City Schools Dist. (1982)
136 Cal.App.3d 881, 900-901 (Modesto), a case arising under the Educational Employment
Relations Act (EERA),2 the court explained:
An employer cannot change matters within the scope of
representation without first providing the exclusive representative
notice and opportunity to negotiate. Unilateral change in these
2 EERA is codified at Government Code section 3540 et seq.
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prior to impasse is seen as a violation of the duty to
negotiate in good faith because it is tantamount to a refusal to
bargain. However, once impasse is reached, the employer may
take unilateral action to implement the last offer the union has
rejected. (Labor Boardv. Katz (1962) 369 U.S. 736, 745
[8 L.Ed.2d 230, 237, 82 S.Ct. 1107].) The employer need not
implement changes absolutely identical with its last offer on a
given issue. However, the unilateral adoptions must be
reasonably comprehended within the preimpasse proposals.
(Taft Broadcasting Co. (1967) 163 N. L. R. B. No. 55, enforced
sub nom., American Fed. of Television and Radio Artists v.
N. L. R. B. (D.C. Cir. 1968) 395 F.2d 622.)
Consistent with Modesto, CCPOA argues that, in a post-impasse situation, DP A may
only implement those policies that were reasonably contemplated by the LBFO. 	Since, in this
case, the LBFO clearly contemplates that employees in Bargaining Unit 6 are entitled to
receive reimbursement for business-related automobile travel at the FSMR, CCPOA claims
DP A violated the Dills Act by failing to apply the increased FSMR to its members. The
problem with this theory, however, is that it ignores language in the Dills Act that directly
addresses an employer's post-impasse ability to implement a LBFO.
A. 	DP A Could Not Legally Provide The Increased Reimbursement Rate
Section 3517.8(b) of the Dills Act reads, in pertinent part:
If the Governor and the recognized employee organization reach
an impasse in negotiations for a new memorandum of
understanding, the state employer may implement any or all of its
last, best, and final offer. Any proposal in the state employer's
last, best, and final offer that, if implemented, would conflict with
existing statutes or require the expenditure of funds shall be
presented to the Legislature for approval and, if approved, shall
be controlling without further legislative action, notwithstanding
Sections 3517.5, 3517.6, and 3517.7. 	[Emphasis added.]
Thus, as a general rule and with limited exceptions, Section 3 51 7. 8(b) permits the State
to implement "any or ali" of the proposals contained in its LBFO. However, if a proposal
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in the LBFO conflicts with existing law or requires the expenditure
of
funds, the
proposal must be approved by the Legislature.
In this case, the implementation
of
the LBFO after January
1,
2008 increases mileage
reimbursements. We find such a proposal requires the expenditure
of
funds. 	Therefore, the
State's implementation
of
the proposal does not become "controlling" until it
is
"approved" by
the Legislature.
Here, the increased mileage reimbursement proposal has not been approved by the
Legislature. Absent such approval, DP A cannot legally provide the increased reimbursement
rate. Accordingly, DPA's failure to implement the LBFO's mileage reimbursement proposal,
as alleged, does not violate the Dills Act.
B. 	Labor Code Section 2802 Does Not Require DPA To Increase The Reimbursement
Rate
In its amended charge, CCPOA asserts that Labor Code section 2802 requires DP A to
reimburse employees in Bargaining Unit 6 for mileage at the FSMR. Labor Code section 2802
provides, in pertinent part:
An employer shall indemnify his or her employee for all
necessary expenditures or losses incurred by the employee in
direct consequence
of
the discharge
of
his or her duties.
PERB, however, does not enforce other independent statutory schemes. (Wygant v.
Victor Valley Joint Union High School Dist. (1985) 168 Cal.App. 3d 319, 323.) Thus, it does
not have jurisdiction over Labor Code disputes. Rather, PERB is an expert, quasi-judicial
administrative agency charged with administering California's public sector collective
bargaining statutes. (See e.g., Dills Act§ 3512 et seq., EERA § 3540 et seq., and HEERA3
§ 3560 et seq.) In this case, the "collective bargaining" question presented to PERB is
3 HEERA is codified at Government Code section 3560 et seq.
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in the absence of legislative approval, DP A must implement the mileage provision set
forth in the LBFO. We find Dills Act section 3517.8(b) clearly answers that question in the
negative. Accordingly, the alleged facts fail to establish a violation of the Dills Act.
ORDER
The unfair practice charge in Case No. SA-CE-1667-S is hereby DISMISSED
WITHOUT LEAVE TO AMEND.
Members Wesley and Dowdin Calvillo joined in this Decision.
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