State of California (Department of Corrections and Rehabilitation, Department of Personnel Administration) (PERB 2115S)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
CALIFORNIA CORRECTIONAL PEACE
OFFICERS ASSOCIATION,
Charging Party,
V.
STATE OF CALIFORNIA (DEPARTMENT OF
CORRECTIONS & REHABILITATION,
DEPARTMENT OF PERSONNEL
ADMINISTRATION),
Respondent.
Case No. SA-CE-1676-S
PERB Decision No. 2115-S
June 10, 2010
Appearances: Carroll, Burdick & McDonough by Gregg McLean Adam and Erick V. Munoz,
Attorneys, for California Correctional Peace Officers Association; Todd M. Ratshin, Legal
Counsel, for State of California (Department of Corrections & Rehabilitation, Department of
Personnel Administration).
Before Dowdin Calvillo, Chair; McKeag and Wesley, Members.
DECISION
DOWD IN CALVILLO, Chair: This case is 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 of its unfair practice charge. The charge, as amended,
alleged that the State of California (Department of Corrections & Rehabilitation, Department
of Personnel Administration) (DP A or State) violated the Ralph C. Dills Act (Dills Act) 1 by:
(1) after deciding to close two juvenile correctional facilities and lay off employees,
unilaterally establishing the geographic area of the layoffs without providing CCPOA with
notice or an opportunity to bargain; and (2) engaging in surface bargaining over the area of
1 The Dills Act is codified at Government Code section 3512 et seq. Unless otherwise
indicated, all statutory references are to the Government Code.

layoff.2 The Board agent dismissed the charge for failure to state a prima facie case of
unilateral change or surface bargaining.
The Board has reviewed the dismissal and the record in light of CCPOA's appeal,
DPA'S response and the relevant law. Based on this review, the Board affirms the dismissal of
the charge for the reasons discussed below.
BACKGROUND
CCPOA is the exclusive representative of State Bargaining Unit 6. In September 2007,
the Governor signed Senate Bill No. 81, which realigned services for juvenile offenders by
allowing certain juveniles incarcerated for less serious crimes to remain in, or be referred back
to the counties. As a result of this bill, the Department of Corrections and Rehabilitation
(CDCR) anticipated that the juvenile population housed by CDCR would drop to 1,840 by
June 30, 2008 and to 1,575 by June 30, 2009. Therefore, based upon this and other legislation
and court decisions affecting CDCR' s adult services, CDCR began the process of closing some
of its juvenile detention facilities. 	In November 2007, CDCR developed preliminary plans to
close both the El Paso De Robles Youth Correctional Facility (El Paso) and the DeWitt Nelson
Youth Correctional Facility (De Witt) effective July 31, 2008. Given the language of Senate
Bill No. 81, CDCR determined that closure of these two facilities was required in fiscal year
2008-2009. The Governor incorporated the closure of these facilities into his proposed budget
in January 2008 by not including funding for juvenile services at those facilities. The
Legislature adopted the Governor's proposal in this regard.
The original charge also alleged that the State failed to provide CCPOA with
information concerning the impending closure of two juvenile correctional facilities and the
resulting layoffs of employees. The Board agent warned CCPOA that this allegation would be
dismissed for failure to state a prima facie case and CCPOA did not amend the charge to cure
the deficiencies with respect to this allegation. CCPOA has not appealed the dismissal of that
aspect of the charge and it is therefore not addressed in this decision.
2

CDCR submitted its layoff plans to DPA for El Paso and DeWitt on March 10, 2008,
and March 20, respectively. 3 DPA approved the plans on March 11, 2008, and March 21,
2008, respectively. Each approved plan proposed a "geographic area
of
layoff," defined as San
Luis Obispo County (El Paso) and San Joaquin County (DeWitt). Thus, the plans included not
only employees
of
facilities within DJJ but also employees employed at adult and
administrative facilities within the designated counties. In general, a "geographic" area
of
layoff affects only those employees within a specific geographic region, while a "statewide"
area
of
layoff affects all
of
the employees employed in a specific classification throughout the
state.
On March 24, 2008, DPA gave written notice to CCPOA that CDCR was closing both
the El Paso and the DeWitt facilities effective July 31, 2008. The notices stated that the
closure
of
these two facilities would result in the permanent reduction
of
bargaining unit
members in specified classifications and invited CCPOA to respond no later than April 14,
2008
if
CCPOA wanted to meet and confer over the impact
of
the closures. The notices
included CDCR's layoff plans for each facility, which indicated the "proposed area
of
layoff'
was by county.
On March 28, 2008, CDCR sent a letter to affected employees at El Paso and De Witt
informing them that they were designated as "surplus" in their designated geographical
location and advising them to seek out vacancies for which they were qualified and eligible to
transfer.4 The letters included two lists of "frequently asked questions" (FAQs), one dated
3 CDCR preliminarily announced that the areas of layoff would be limited to
Department of Juvenile Justice (DJJ) facilities only but, in its formal submissions to DPA,
expanded the area of layoff to include adult and other facilities within the respective counties.
4 Under state law, employees designated as surplus are entitled to preferential hiring
procedures.
3

January 7, 2007 and one dated April 1, 2008. The January 7, 2007 FAQs stated that the
"recommended area of layoff' was limited to DJJ facilities within the respective counties, and
that DJJ employees would not be permitted to bump employees in CDCR Adult Operations.
The April 1, 2008 FAQs, however, stated that the formal layoff plans submitted to and
approved by DP A designated the approved areas of layoff included all CDCR entities within
the respective counties, including both juvenile and adult facilities and administrative and
training facilities. 5
Also on March 28, 2008, CCPOA sent a request to DP A for specified information
concerning the layoffs.6 On April 8, 2008, CCPOA requested to meet and confer over the
impact of the layoffs and reiterated its information request.
CCPOA filed the instant charge, dated April 16, 2008, on April 18, 2008.
On April 18, 2008, DPA advised CCPOA that it was gathering the requested
information and invited CCPOA to contact it to schedule dates to meet and confer. On
April 25, 2008, DPA provided some of the information requested by CCPOA. On May 8,
2008, CCPOA agreed it would meet and confer with the State "under protest."
The parties met and conferred on six occasions prior to the July 31, 2008 layoff
implementation date: May 20, 27 and 29, and July 1, 2 and 15, 2008.7 On May 27, 2008,
CCPOA passed a proposal that the area of the layoffs be statewide. The State considered but
5 According to the State, the plans approved by DPA expanded the area of layoff to
include adult facilities within each county instead of limiting the area to DJJ facilities as
originally recommended by CDCR.
6 As indicated previously, CCPOA has not appealed the dismissal of the allegations
concerning its information request.
7 DPA asserts that it attempted to schedule further dates to meet and confer, including
June 24, but the parties did not meet again until July 1, 2008. On June 18, 2008, CCPOA filed
a request for injunctive relief, which PERB denied on June 25, 2008.
4

rejected that proposal and, on July 1, 2008, passed a proposal that continued to define the area
of layoffs as geographic. The parties continued to discuss the effects of the layoff during the
remaining bargaining sessions. In addition, CCPOA asserts that the State actually
implemented the layoff in June 2008 by conducting "election interviews" with employees in
order to deter111ine employee preferences for relocation or demotion. Ultimately, both the State
and CCPOA remained firm in their bargaining positions with respect to the area of layoff, with
the State insisting that the area be geographic while CCPOA continued to seek a broader,
statewide area of layoff. 8
On July 31, 2008, the State closed the El Paso and De Witt facilities as scheduled.
Employees were relocated on August 1, 2008 but no employees were actually laid off. 	The
parties held a final bargaining session on August 20, 2008. On August 29, 2008, DPA sent
CCPOA a letter summarizing the negotiations, stating in part:
The parties have met seven times. The State has presented its
own proposals and considered and responded to CCPOA's
proposals and counter proposals with no meaningful movement in
position. Accordingly since neither party has any further
movement to make in our respective proposals, we consider these
negotiations completed.
DISCUSSION
Unilateral Change
In determining whether a party has violated Dills Act section 3519( c), PERB utilizes
either the "per se" or "totality of the conduct" test, depending on the specific conduct involved
and the effect of such conduct on the negotiating process. (Stockton Unified School District
(1980) PERB Decision No. 143.) Unilateral changes are considered "per se" violations if
8 CCPOA's amended charge states: "[T]he parties have engaged in productive good
faith negotiations regarding other layoff issues. However, good faith negotiation regarding the
area of layoff has not taken place." (Emphasis in original.)
5

certain criteria are met. Those criteria are: (1) the employer breached or altered the parties'
written agreement or its own established past practice; (2) such action was taken without
giving the other party notice or an opportunity to bargain over the change; (3) the change was
not merely an isolated breach
of
the contract, but amounts to a change in policy (i.e., it has a
generalized effect or continuing impact upon bargaining unit members' terms and conditions
of
employment); and (4) the change in policy concerns a matter within the scope
of
representation. (Vernon Fire Fighters
v.
City a/Vernon (1980) 107 Cal.App.3d 802; Walnut
Valley Unified School District (1981) PERB Decision No. 160; San Joaquin County Employees
Association
v.
City
of
Stockton (1984)
161
Cal.App.3d 813; Grant Joint Union High School
District (1982) PERB Decision No. 196.)
PERB has long held that the decision to implement a layoff
of
employees is a
fundamental management prerogative over which the employer is not obligated to bargain.
(State
of
California (Department
of
Personnel Administration) (1987) PERB Decision
No. 648-S; Newman-Crows Landing Unified School District (1982) PERB Decision No. 223;
Oakland Unified School District (1985) PERB Decision No. 540 (Oakland).) The employer is,
however, required to bargain over the effects
of
its decision that have an impact on matters
within the scope
of
representation. (Newark Unified School District, Board
of
Education
(1982) PERB Decision No. 225; Oakland.) In addition, "[n]otice must be given sufficiently in
advance
of
a firm decision to make a change to allow the exclusive representative a reasonable
amount
of
time to decide whether to make a demand to negotiate." (Victor Valley Union High
School District (1986) PERB Decision No. 565.)
PERB has held, however, that under certain circumstances, an employer may
implement a nonnegotiable management decision after providing reasonable notice and a
meaningful opportunity to bargain over the effects of that decision. (Compton Community
6

College District (1989) PERB Decision No. 720 (Compton).) Thus, PERB has held,
implementation before the completion of the bargaining process is permissible where:
1. the implementation date is not an arbitrary one, but is based
upon either an immutable deadline ... or an important
managerial interest, such that a delay in implementation beyond
the date chosen would effectively undermine the employer's right
to make the nonnegotiable decision;
2. notice of the decision and implementation date is given
sufficiently in advance of the implementation date to allow for
meaningful negotiations prior to implementation; and
3. the employer negotiates in good faith prior to implementation
and continues to negotiate in good faith after implementation as
to those subjects not necessarily resolved by virtue of the
implementation.
(Compton.)
In State of California (Department of Forestry and Fire Protection) (1993) PERB
Decision No. 999-S, PERB reaffirmed these principles, holding that "the state employer's
prerogative to reduce its operations includes the authority to identify the specific positions in
specific locations to be eliminated, and is not a negotiable subject under the Dills Act." The
Board further held, however, that "subjects affecting the fundamental employment
relationship, such as the designation of the area in which employees will be laid off, are
negotiable subjects." Therefore, the Board found the state employer violated its duty to
bargain under the Dills Act by refusing to bargain over whether the area of layoff should be
limited to specified counties or instead to a statewide area.
In this case, CCPOA asserts that the State failed to bargain in good faith over the area
of layoff because it had already made the decision to implement the layoff on a geographic
basis before negotiating. Thus, CCPOA argues, the State "unequivocally" set the areas of
layoff in March 2008, as evidenced by statements in correspondence to CCPOA and to
employees stating that the area of layoff would be the individual counties, prior to bargaining
7

with CCPOA. In particular, CCPOA argues that, by sending surplus letters to employees in
March 2008 and conducting "election interviews" with employees in June 2008, the State
actually began implementing the layoff before bargaining commenced.
We disagree that the charge states facts sufficient to establish a prima facie case of
refusal to bargain over the area of layoff. The State gave four months' notice to both CCPOA
and affected employees of its fundamental management decision to close the two juvenile
facilities and to lay off employees, and invited CCPOA to bargain about the impact of the staff
reductions. While the March 24 and 28, 2008 letters described the area of layoff as geographic
in the respective counties, the formal layoff plans indicated the geographic area of layoff was
"proposed." Nothing in the letters indicated that the State would refuse to comply with its
obligation to bargain over the effects of the layoff or foreclosed the possibility that the area of
layoff may change during negotiations. To the contrary, the letters to CCPOA affirmatively
invited bargaining. By giving notice more than four months before the planned
implementation date, the State afforded CCPOA ample opportunity to negotiate over the
effects of the layoff, including the area of layoff. (Oakland. )9 CCPOA does not dispute that it
met with DP A on six occasions prior to the July 31, 2008 implementation date to discuss the
effects of the layoff, including the area of layoff and that both parties exchanged proposals on
the subject. Adamant insistence on a bargaining position is not necessarily a refusal to bargain
in good faith. 	(Oakland Unified School District (1982) PERB Decision No. 275.) "The
obligation of the employer to bargain in good faith does not require the yielding of positions
9 Indeed, the fact that the March 28, 2008 letters to employees contained conflicting
information as to whether the area of layoff would be limited to DJJ facilities or include all
facilities within the identified geographic areas suggests that the State had not made a firm
decision as to the area of layoff to be implemented.
8

fairly maintained." (National Labor Relations Bd. v. Herman Sausage Co. (5th Cir. 1960)
275 F.2d 229,231 (Herman Sausage).)
CCPOA has provided no authority to support its position that implementation of the
layoff occurred when DP A notified CCPOA and the employees of the layoff. As noted above,
DP A merely informed CCPOA and affected employees of its layoff decision, which was not
negotiable, and offered to negotiate the effects of the layoff. Until such time as the layoff was
actually implemented on July 31, 2008, and even thereafter, the parties could have negotiated
changes to the area of layoff. 10 Therefore, we conclude that the charge fails to establish a
prima facie violation of the duty to bargain under the Dills Act.
Moreover, the charge fails to allege sufficient facts to establish that the State violated
its duty to bargain by implementing the layoff on July 31, 2008, while it continued to bargain
until August 20, 2008. As noted above, implementation of the nonnegotiable decision to lay
off employees prior to the completion of negotiations over the effects of the layoff is
permissible where the decision to implement was not arbitrary, the employer gave sufficient
notice of the implementation date to provide for meaningful negotiation, and the employer
continues to negotiate in good faith. 	(Compton.) CCPOA has not alleged that the July 31,
2008 implementation date, in light of the Legislature's elimination of funding for El Paso and
DeWitt, for the fiscal year 2008-2009, was arbitrary. It is undisputed that the State gave four
10 DPA has objected to consideration of documents submitted by CCPOA for the first
time on appeal. Pursuant to PERB Regulation 32635(b ), "Unless good cause is shown, a
charging party may not present on appeal new charge allegations or new supporting
evidence." (PERB regs. are codified at Cal. Code Regs., tit. 8, § 31001 et seq.) As there is
no explanation why this information could not have been included in the charge, the Board
does not find good cause and declines to consider the new evidence. We note, however, that
even if the Board were to consider the DP A layoff procedures relied upon by CCPOA, those
procedures do not support CCPOA's position, as nothing therein requires the State to refrain
from noticing employees of an impending layoff until all negotiations over the effects of the
layoff have been concluded.
9

months' notice prior to the implementation date and that the parties continued to negotiate
even after implementation
of
the layoff. Accordingly, we conclude that the State did not
violate its duty to negotiate in good faith over the effects
of
the layoff.
Surface Bargaining
The amended charge alleges that the employer violated Dills Act section 3 519(c) by
engaging in bad faith or "surface" bargaining. It is the essence
of
surface bargaining that a
party goes through the motions
of
negotiations, but in fact is weaving otherwise
unobjectionable conduct into an entangling fabric to delay or prevent agreement. (Muroc
Unified School District (1978) PERB Decision No. 80.) Where there is an accusation
of
surface bargaining, PERB will resolve the question
of
good faith by analyzing the totality
of
the accused party's conduct. The Board weighs the facts to determine whether the conduct at
issue "indicates an intent to subvert the negotiating process or is merely a legitimate position
adamantly maintained." (Oakland Unified School District (1982) PERB Decision No. 275.)
The indicia
of
surface bargaining are many. Entering negotiations with a "take-it-or-
leave-it" attitude evidences a failure
of
the duty to bargain because it amounts to merely going
through the motions
of
negotiations. (General Electric
Co.
(1964) 150 NLRB 192, 194, enf.
418 F.2d 736.) Recalcitrance in the scheduling
of
meetings is evidence
of
manipulation to
delay and obstruct a timely agreement. (Oakland Unified School District (1983) PERB
Decision No. 326.) Dilatory and evasive tactics including canceling meetings or failing to
prepare for meetings is evidence
of
bad faith. 	(Ibid.) Conditioning agreement on economic
matters upon prior agreement on non-economic subjects is evidence
of
an unwillingness to
engage in a give-and-take. (State
of
California (Department
of
Personnel Administration)
(1998) PERB Decision No. 1249-S.)

Other factors that have been held to be indicia
of
surface bargaining include:
negotiator's lack
of
authority which delays and thwarts the bargaining process (Stockton
Unified School District (1980) PERB Decision No. 143); insistence on ground rules before
negotiating substantive issues (San Ysidro School District (1980) PERB Decision No. 134);
and reneging on tentative agreements the parties already have made (Charter Oak Unified
School District (1991) PERB Decision No. 873; Stockton Unified School District, supra;
Placerville Union School District (1978) PERB Decision No. 69).
It is clear, however, that while a party may not merely go through the motions, it may
lawfully maintain an adamant position on any issue. Adamant insistence on a bargaining
position is not necessarily refusal to bargain in good faith. (Oakland Unified School District,
supra, PERB Decision No. 275.) "The obligation
of
the employer to bargain in good faith
does not require the yielding
of
positions fairly maintained." (Herman Sausage.)
The amended charge fails to establish a prima facie case
of
surface bargaining. None
of
the indicia
of
surface bargaining set forth above have been alleged in this case. Instead,
CCPOA argues that the State's failure to change its position regarding the area
of
layoff
demonstrates that the State was merely "going through the motions
of
negotiations." (Berkeley
Unified School District (2008) PERB Decision No. 1954.) CCPOA asserts that the following
factors establish a prima facie case that the State engaged in surface bargaining based upon a
"totality
of
conduct": (1) the State unilaterally set the area
of
layoff; (2) it disseminated that
area to employees and the union; (3) employees relied upon this area in making life and career
decisions; ( 4) the first bargaining session occurred days before the election interviews; ( 5) the
State could not change the area of layoff in such a short time frame; (6) the State offered no
counter proposal regarding the layoff area; and (7) the area of layoff remained unchanged
through bargaining.
11

We disagree with CCPOA's contention that the above allegations establish a "take-it-
or-leave-it" attitude on the part of the State so as to establish a prima facie case of surface
bargaining. As discussed above, the State provided ample notice and an opportunity to bargain
over the effects of its decision to implement the layoff and participated in seven negotiating
sessions during which both sides presented proposals. In the absence of any evidence,
CCPOA's speculation that the State could not have changed the area of layoff during
bargaining is insufficient to establish a prima facie case. Furthermore, the evidence indicates
that neither CCPOA nor the State side was willing to yield its position; while the State insisted
on a geographic area of layoff, CCPOA was equally insistent on its demand for a statewide
area of layoff. The State's adamant insistence on its bargaining position does not establish a
failure to bargain in good faith. 	( Oakland Unified School District, supra, PERB Decision
No. 275; Herman Sausage.)
Under the totality of the circumstances, we conclude that the charge fails to establish a
prima facie case of surface bargaining over the impact of the State's layoff decision.
ORDER
The unfair practice charge in Case No. SA-CE-1676-S is hereby DISMISSED
WITHOUT LEAVE TO AMEND.
Members McKeag and Wesley joined in this Decision.
12