State of California (California Highway Patrol) (PERB 1574S)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

CALIFORNIA UNION OF SAFETY
EMPLOYEES,

Charging Party, Case No. LA-CE-583-S

v. PERB Decision No. 1574-S

STATE OF CALIFORNIA (CALIFORNIA December 30, 2003

HIGHWAY PATROL),

Respondent.

Appearances: Sam A. McCall, Jr., Chief Legal Counsel, for the California Union of Safety
Employees; State of California (Department of Personnel Administration by Linda M. Nelson,
Labor Relations Counsel, for the State of California (California Highway Patrol).
Before Baker, Whitehead and Neima, Members.
DECISION

NEIMA, Member: This case was brought before the Public Employment Relations
(PERB or Board) on appeal by the California Union of Safety Employees (CAUSE) of a Board
agent’s dismissal (attached) of an unfair practice charge. The charge alleged that the State of
California (California Highway Patrol) (CHP) violated the Ralph C. Dills Act (Dills Act)’ by
denying William Jackson union representation at a meeting in which he was questioned
regarding allegations that he had engaged in misconduct. CAUSE alleged that CHP’s conduct

constituted a violation of employee rights under Dills Act section 3519(a), and employee

organization rights under Dills Act sections 3519(b) and 3515. 152

‘The Dills Act is codified at Government Code section 3512 et seq. Unless otherwise
indicated, all statutory references herein are to the Government Code.

*Section 3519 states, in pertinent part:

The Board agent determined that all of the charge allegations were subject to deferral
to the grievance arbitration procedure negotiated by CHP and CAUSE and that CHP had
waived procedural defenses. (See State of California (Department of Food and Agriculture)
(2002) PERB Decision No. 1473-S.) The Board agent therefore dismissed all charge
allegations.
On appeal, CAUSE did not challenge dismissal of the Section 3519(a) allegation, but
argued that the Sections 3519(b) and 3515 allegations should have been bifurcated and
remained before PERB for adjudication. CAUSE argued that the parties' agreement did not
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
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.
(b) Deny to employee organizations rights guaranteed to them by
this chapter.
Section 3515.5 states:
Employee organizations shall have the right to represent their
members in their employment relations with the state, except that
once an employee organization is recognized as the exclusive
representative of an appropriate unit, the recognized employee
organization is the only organization that may represent that unit
in employment relations with the state. Employee organizations
may establish reasonable restrictions regarding who may join and
may make reasonable provisions for the dismissal of individuals
from membership. Nothing in this section shall prohibit any
employee from appearing in his own behalf in his employment
relations with the state.
2

prohibit violation
of
employee organizations' statutory rights and did not empower an
arbitrator to impose remedies for such violations traditionally utilized by PERB and the
National Labor Relations Board, so deferral was inconsistent with the purposes
of
the Dills
Act.
During the Board's review
of
this appeal, CAUSE submitted a request to withdraw its
charge in this case and CHP did not oppose that request.
A party's request to withdraw a case that is pending on appeal before the Board itself is
subject to the Board's discretion. The Board recently issued decisions discussing issues
similar to those presented by the parties' arguments herein. (State
of
California (Department
of
Parks and Recreation) (CAUSE) (2003) PERB Decision No. 1566-S; State
of
California
(Department
of
Mental Health) (CAUSE) (2003) PERB Decision No. 1567-S.) The Board,
therefore, finds that allowing withdrawal
of
the charge and appeal in this case would promote
the interests
of
the Dills Act and would be in the best interest
of
the parties. Therefore, the
request is granted.
ORDER
The request
of
the California Union
of
Safety Employees to withdraw the unfair
practice charge in Case No. LA-CE-583-S is hereby GRANTED. The appeal and unfair
practice charge are WITHDRAWN WITH PREJUDICE.
Members Baker and Whitehead joined in this Decision.
3

STATE OF CALIFORNIA 	GRAY DA VIS, Governor	(
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
I 031 18th Street
Sacramento, CA 95814-4174
Telephone: (916) 327-8386
Fax: (9 I 6) 327-63 77
September 10, 2002
Sam A. McCall, Jr., Chief Legal Counsel
California Union of Safety Employees
2029 H Street
Sacramento, CA 95814
Re: 	California Union of Safety Employees v. State of California (California Highway
Patrol)
Unfair Practice Charge No. LA-CE-583-S
NOTICE OF DISMISSAL AND DEFERRAL TO ARBITRATION
Dear Mr. McCall:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on June 20, 2002. The charge was amended on July 2, 2002. The
California Union of Safety Employees alleges that the State of California (California Highway
Patrol) violated the Ralph C. Dills Act (Dills Act)1 by interfering with an employee's right to
union representation.
I indicated in the attached letter dated September 3, 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 September 10, 2002, it would be deferred to arbitration and dismissed.
I received your letter of response on September 9, 2002. In that letter you requested that I
reconsider deferral of this matter to the contractual grievance procedure. You contend that the
denial of union representation is not covered by the "No Reprisal" provision. You argue that
provision only addresses issues of illegal discrimination and does not cover illegal interference
with (or denial of) employee rights.
Article 2. 7 of the CAUSE contract with the State employer is title "No Reprisals" and states.
The State and CAUSE shall not impose or threaten to impose
reprisals on employees, to discriminate or threaten to discriminate
against employees, or otherwise interfere with, restrain, or coerce
1 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-583-S
September 10, 2002
Page 2
employees because
of
the exercise
of
their rights under the Ralph
C.
Dills Act or any right given by this Contract.
The contractual language is nearly identical to language which appear in the Dills Act at
Government Code section 3519 which states, in relevant part, that it shall be a violation to,
(a) Impose or threaten to impose reprisals on employees, to
discriminate or threaten to discriminate against employees, or
otherwise to interfere with, restrain, or coerce employees because
of
their exercise
of
rights guaranteed by this chapter.
Government Code section 3519(a) has long been interpreted to prohibit interference with
protected rights as well as discrimination because
of
the exercise
of
protected rights. (See
California Public Sector Labor Relations (May 2002) section 15.02, p. 15-6.) Section 3519(a)
protects an employee's right to union representation and prohibits improper denial thereof.
State
of
California (Department
of
Forestry) (1988) PERB Decision No. 690-S
Accordingly, it appears appropriate to defer your charge under the "No Reprisal" section
of
the
collective bargaining agreement.
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 an
employee was improperly denied union representation. 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-8Ia.)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
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.
3 PERB's Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.

LA-CE-583-S
September 10, 2002
Page 3
/
(
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
delivery, as shown on the carrier's receipt, not later than the last day set for filing.
(Regulations 32135(a) and 32130.)
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

LA-CE-583-S
September 10, 2002
Page 4
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.
Sincerely,
ROBERT THOMPSON
General Counsel
By _ 	_:::.,,~:::::::......:::...._+-_:_--~!:-::.:.'.:;..
Bernard McMonigle
Regional Attorney
Attachment
cc: Linda Nelson

STATE OF CALIFORNIA 	GRAY DA VIS, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
I 03 I I 8th Street
Sacramento, CA 95814-4174
Telephone: (916) 327-8386
Fax: (916) 327-6377
September 3, 2002
Sam A, McCall, Jr., Chief Legal Counsel
California Union of Safety Employees
2029 H Street
Sacramento, CA 95814
(
Re: 	California Union of Safety Employees v. State of California (California Highway
Patrol)
Unfair Practice Charge No. LA-CE-583-S
WARNING LETTER (DEFERRAL TO ARBITRATION)
Dear Mr. McCall:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on June 20, 2002. The charge was amended on July 2, 2002. 	The
California Union of Safety Employees alleges that the State of California (California Highway
Patrol) violated the Ralph C. Dills Act (Dills Act)1 by interfering with an employee's right to
union representation.
Your charge states the following. 	On May 16, 2002, Motor Carrier Specialist William
Jackson was informed that he was to be interviewed the next day regarding a citizen complaint
of misconduct. He was informed that he could not have union representation. Mr. Jackson
contacted CAUSE to seek representation at the interview. On May 16, a CAUSE Labor
Representative contacted CHP Chief Lykins who confirmed that he was denying Mr. Jackson's
request for union representation at the meeting. On May 17, Mr. Jackson was questioned
without union representation about the complaint. On May 20, Mr. Jackson was issued a
counseling memorandum.
CAUSE and the State employer are parties to a collective bargaining agreement effective July
1, 2001 to July 2, 2003. That agreement contains a grievance procedure that ends in binding
arbitration. Article 2.6 of that agreement is titled "No Reprisals" and states,
The State and CAUSE shall not impose or threaten to
impose reprisals on employees, to discriminate or threaten
to discriminate against employees, or otherwise interfere
with, restrain, or coerce employees because of the exercise
1 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-583-S
September 3, 2002
Page 2
of
their rights under the Ralph C. Dills Act or any right
given
by
this Contract.
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.
In Dry Creek Joint Elementary School District (1980) PERB Order No. Ad-81 a, the Boardexplained 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 EERA
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.]
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 83 7 [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.
2 The Educational Employment Relations Act is codified at Government Code section
3540 et seq.

LA-CE-583-S
September
3,
2002
Page 3
(
Second, by the attached letter from its representative, Linda Nelson, dated July
8,
2002, the
Respondent has indicated its willingness to proceed to arbitration and to waive all procedural
defenses3. Finally, the issue raised by this charge that employee rights were interfered with by
the denial
of
union representation directly involves an interpretation
of
Article 2.6
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 Elementary School District,
supra.)4
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 September 10, 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
3 The letter is titled "Confidential Response", however, DP A Labor Relations Counsel
Linda Nelson waived confidentiality by telephone conversation on August 26, 2002.
4 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.