State of California (Departments of Veterans Affairs and Personnel Administration) (PERB 1997S)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
STATE OF CALIFORNIA (DEPARTMENTS OF
VETERANS AFFAIRS & PERSONNEL
ADMINISTRATION),
Charging Parties,
V.
SERVICE EMPLOYEES INTERNATIONAL
UNION, LOCAL 1000, CSEA,
Res ondent.
Case No. SA-CO-278-S
PERB Decision No. 	1997-S
December 22, 2008
Appearances: 	State of California (Department of Personnel Administration) by Paul M.
Starkey, Labor Relations Counsel, for State of California (Departments of Veterans Affairs &
Personnel Administration); Melinda \Villiams, Attorney, for Service Employees International
Union, Local 1000, CSEA.
Before Neuwald, Chair; McKeag and Wesley, Members.
DECISION
NEUW ALD, Chair: This case comes before the Public Employment Relations Board
(PERB or Board) on exceptions filed by the State of California (Departments of Veterans
Affairs & Personnel Administration) (State) to the proposed decision of an administrative law
judge (ALJ) dismissing the State's unfair practice charge. The complaint in this matter alleged
that the Service Employees International Union, Local 1000, CSEA (SEIU) breached the terms
of the parties' memorandum of understanding (MOU) by "condoning" a sick-out held by
certified nurse assistants (CNA's) in the skilled nursing unit of the Chula Vista Veterans Home
(Home); failing to provide notice to union staff of the no-strike provisions of the MOU; and
failing to encourage the CNA' s to return to work. 	The complaint alleged that this conduct

constituted a unilateral change in violation of the Ralph C. Dills Act (Dills Act or Act) 1
section 3519.5(c).2
The Board has reviewed the entire record in this matter, including but not limited to the
State's unfair practice charge, the complaint, SEIU's answer, the hearing transcript, the parties'
post-hearing briefs, the proposed decision, the State's exceptions, and SEIU's response thereto.
Based upon this review, the Board affirms the proposed decision consistent with the discussion
below.
PROCEDURAL HISTORY
The State filed an unfair practice charge against SEIU on July 8, 2005, alleging that
SEIU breached the terms of the parties' MOU when it allegedly failed to inform employees at
the Home who were engaged in a sick-out in early July 2005 that it was their obligation to cease
that job action. Along with the charge, the State also filed a request for injunctive relief. 	The
Board denied the request for injunctive relief on July 18, 2005.
The General Counsel issued a complaint on July 18, 2005, and an amended complaint
on July 19, 2005. An informal settlement conference was held on July 29, 2005, but the matter
was not resolved. 	SEIU answered the complaint on August 12, 2005.
The ALJ conducted a formal hearing on November 29, 30, and December 1, 2005.
Following the filing of post-hearing briefs, the ALJ issued a proposed decision on May 25,
2006, dismissing the complaint and unfair practice charge.
1The Dills Act is codified at Government Code section 3512, et seq. Unless otherwise
indicated, all statutory references herein are to the Government Code.
2Section 3519.S(c) provides that:
It shall be unlawful for an employee organization to:
(c) Refuse or fail to meet and confer in good faith with a state
agency employer of any of the employees of which it is the
recognized employee organization.
2

The State filed a statement of exceptions and supporting brief on July 5, 2006. 	SEIU
filed a response thereto on August 7, 2006.
STATEMENT OF FACTS
The Home is a 400-bed facility providing three levels of nursing home care to veterans.
One-hundred-sixty-five beds are devoted to independent living, 55 to assisted living, and 185
to skilled nursing care. 	The CNA's (Bargaining Unit 20) perform the primary duties of
providing personal care to the residents, including such duties as assisting residents with their
showers, oral care, feeding, toileting, shaving, etc. The CNA's assigned to the skilled nursing
care section are divided into three, eight-hour shifts.
The State and SEIU were parties to an MOU that expired on June 30, 2005. The
parties had not reached agreement on a new MOU, and had not reached impasse in their
negotiations. Said MOU contained the following "no-strike" provision:
A. During the term of this Contract, neither the Union nor its
agents nor any employee, for any reason, will authorize, institute,
aid, condone, or engage in a work slowdown, work stoppage,
strike, or any other interference with the work and statutory
functions or obligations of the State.
B. The Union agrees to notify all of its officers, stewards, chief
stewards, and staff of their obligation and responsibility for
maintaining compliance with this section, including the
responsibility to remain at work during any activity which may be
caused or initiated by others, and to encourage employees
violating this section to return to work.
SEIU President Jim Hard (Hard) testified that he has explained the no-strike provision
to SEIU members "many, many times over the years." He testified that he discussed the
provision with SEIU bargaining representatives and attorneys several times over the past year.
Several events led up to the sick-out by the CNA's. 	In or about April 2005, CNA Nelia
Olimpo (Olimpo), an employee of the Home, testified before the State Legislature in support of
a bill prohibiting mandatory overtime work. 	Olimpo asserted that management rejected a
3

doctor's note excusing her from mandatory overtime. Following her testimony, the
management staff of the Home held a meeting with Olimpo. 	SEIU asserts that management
harassed Olimpo at this meeting. Thereafter, SEIU began to wage what Labor Relations
Representative, Wendell Prude (Prude )3 termed a "war" against the Home.
On June 16, 2005, the Home notified Prude and the CNA's that it intended to
implement a "4/2 with options" schedule effective July 1, 2005. Also on June 16, an SEIU
flyer was circulated at the Home. This flyer referenced the alleged harassment of Olimpo, and
stated that a public protest would occur at the Home on June 24.
On June 23, Hard flew to Chula Vista in connection with the protest. Prude organized
the picket line and protest that was held at the Home on June 24, 2005. SEIU Vice
President/Secretary-Treasurer, Cathy Hackett traveled from Sacramento to Chula Vista to
participate in the protest.
On June 28, 2005, Prude and the SEIU job stewards at the Home held a union meeting.
This meeting was held at the Chula Vista library, rather than in the employee lounge at the
Home, in order to accommodate more people. Prude testified that the union discussed taking
further actions, such as holding protests in front of the residences of management staff, and
getting the attention of politicians. Prude denies that the union discussed holding a sick-out.
On Thursday, June 30, the Home began to suspect that a high number ofCNA's in the
skilled nursing unit would be out sick the following day or days. Department of Personnel
Administration Chief Counsel, K. William Curtis (Curtis) called and left a voicemail message
that day for SEIU Deputy Chief Counsel, Paul Harris (Harris), and confirmed by e-mail, asking
Prude is based in San Diego, and is responsible for an area which encompasses
approximately 23,000 represented employees, including those in Chula Vista. He reports to
Area Coordinator, John Dellaro (Dellaro ), who reports to Area Director, Nick Builder, who in
turn reports to SEIU Chief of Staff, Michael Baratz (Baratz).
4

for SEIU's assistance in stopping the sick-out. Several days later, Curtis e-mailed Harris
again, expressing his concern. Harris responded to the second e-mail, stating that he had been
out of town and would call when he "had a minute." Harris, however, did not call Curtis.
From approximately Friday, July 1 to Sunday, July 3, 2005, the sick-out occurred.
During that period, the percentage of CNA' s in the skilled nursing unit who called in sick was
far above normal. 	On July 1, 36 out of 48 CNA's scheduled to work called in "sick"
(75 percent sick rate). 	On July 2, 18 out of 49 CNA's scheduled to work called in "sick"
(36.73 percent). On July 3, 10 out of 58 CNA's scheduled to work called in "sick"
(17.24 percent).4 In contrast, a "normal" percentage of CNA's calling in sick was in the range
of 3-6 percent.5
State Chief of Labor Relations, David Gilb (Gilb) and his executive secretary testified
that they faxed a letter to Hard and to SEIU Chief of Staff Baratz on July 1 providing notice of
the sick-out, and alerting SEIU to its obligations under Article 5.1 of the MOU.
Baratz testified that he did not receive Gilb's July 1 letter until July 5. However,
Baratz testified that he received two phone calls from the State on July 1 regarding the sick
out. At the time, Baratz was in Sacramento attending a bargaining meeting with 200 other
people. 	Baratz testified that he called Prude on the telephone on the same day (July 1) and
asked Prude to look into the alleged sick-out. Baratz testified that he took no further action to
4The State contends that the sick-out occurred from June 30 through July 5, but we
find that the percentage of CNA' s who called in sick on June 30 (7.27 percent sick), July 4
(6.90 percent), and July 5 (7.27 percent) was not high enough to establish that there necessarily
was a sick-out on those days.
5During the hearing, SEIU sought to introduce declarations from 26 of the CNA's who
called in sick during the relevant period, stating that they had doctor's notes excusing their
absences. The State objected that such declarations were hearsay, and that it would
unnecessarily delay the hearing to litigate whether each of the CNA's who called in sick was,
in fact, sick. 	The ALJ sustained the objection and excluded the declarations. No exceptions
were filed as to this issue.
5

ascertain whether there had been a sick-out, or what actions Prude had taken in response.
Similarly, Hard testified that he delegated the responsibility for handling the sick-out to Baratz
and Harris. 	SEIU's office was closed for the weekend due to the July 4 th holiday.
Prude admits that he called a supervisor at the Home, Nida Oasin (Oasin), at 9:10 p.m.
on Friday, July 1, intending to complain about a report that the Home was not accepting
doctor's notes from CNA's as excuses for absences, but Oasin hung up on him. Prude
claimed, however, that the call was not related to the sick-out.
Prude testified that he did not learn of the sick-out until Saturday, July 2, when he
received a telephone call from Daniel Murray, the director of the Home.6 Prude testified that
after learning of the possible sick-out, he called three stewards at the Home. One steward,
Brown, was in Sacramento as a bargaining delegate, and denied any knowledge of the sick-out.
Another steward, Martha Solario (Solaria), told Prude that she was out sick, and reportedly
denied that the union had any involvement in the sick-out. Prude also spoke with Steward
Judy Alford-Mayo (Alford-Mayo) several times during the sick-out. Prude testified that he
told Solaria, and possibly Alford-Mayo, to "put the word out" about the union's obligations
under Article 5.1 of the MOU and the potential for employees engaged in a sick-out to be
"severely disciplined." Prude testified that his SEIU supervisor, Dellaro, directed him to
inform the stewards and CNA's of their obligations under Article 5.1. Prude also testified that
his usual mode of communication with the CNA's was via the job stewards. Prude testified
that he did not have home phone numbers or email addresses for most of the CNA's.
6This contradicts Baratz's testimony that he called Prude on July 1. It also contradicts
the testimony of SEIU Job Steward Mary Brown (Brown), who testified that Prude called her
while she was in Sacramento, and that she left Sacramento to return home to Southern
California on July 1.
6

Brown testified that subsequent to the sick-out, she told some of the CNA' s during
lunch time that sick-outs are prohibited under Article 5 .1. Brown testified that the stewards
could talk with some of the CNA's in the employee lounge, but that they relied upon putting
flyers in the CNA's mailboxes in order to disseminate messages to CNA's working all three
shifts at the Home. Brown further testified that the stewards did not have home telephone
numbers or email addresses for all of the CNA's. She further testified that the CNA's did not
have work email addresses.
Gilb faxed another letter to SEIU on July 6, enclosing a copy of his July 1 letter and
demanding a response. Baratz responded to Gilb in writing on the same day, asserting that
there had been "no concerted activity" at the Home, blaming management for problems at the
Home, and claiming without providing any details that SEIU had complied with Article 5 .1.
The State presented evidence that previously, in 2002, there was a sick-out at three
prisons operated by the California Department of Corrections by registered nurses (RN' s)
represented by SEIU, who are in Unit 17, which is a different bargaining unit from the one to
which the CNA's belong (Unit 20). In that case, the California State Employees Association
(CSEA) President, Perry Kenny (Kenny), was quoted in a newspaper article as stating, "We've
been actively contacting our nurses telling them we cannot condone a sick-out." Additionally,
Kenny is quoted as stating, "We've encouraged them to go to work."
The State also presented evidence that on or about August 23, 2005, in response to an
alleged sick-out by RN's at the Correctional Training Facility and the Salinas Valley
Psychiatric Program, Johμ Simmons, SEIU senior labor relations officer, circulated a
memorandum providing a reminder of the language of the no-strike clause in Section 5 .1 of the
Unit 17 contract.
7

DISCUSSION
We must determine whether SEIU made a unilateral change in policy in violation of
Section 3519(c) of the Dills Act by failing to fulfill its obligations under Article 5.1 of the
MOU, as alleged.
In reviewing exceptions to an ALJ's proposed decision, the Board reviews the record
de novo, and is free to draw its own conclusions from the record apart from those made by the
ALJ. 	(Woodland Joint Unified School District (1990) PERB Decision No. 808a.) The Board
ordinarily gives deference to an ALJ's credibility determinations based upon considerations
such as witness demeanor and appearance. 	(Beverly Hills Unified School District (1990)
PERB Decision No. 789.)
To prevail on a complaint of unilateral change, the charging party must establish by a
preponderance of the evidence that: 	( 1) the respondent 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. 	(Grant Joint Union High School District (1982) PERB Decision No. 196
(Grant); State of California (Department of Forestry and Fire Protection) (1993) PERB
Decision No. 999-S; State of California (Department of Personnel Administration) (2004)
PERB Decision No. 1601-S.) In this case, there is no dispute that the matter was within the
scope of bargaining, and that there was no notice or opportunity to bargain over the alleged
change in policy or practice.
8

Thus, the key issues are (1) whether SEIU breached Article 5.1
of
the MOU,
and
(2) whether the alleged breach 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).
Whether SEIU Breached Article 5.1
of
the MOU
The State alleges that SEIU violated Article 5.1 (A)7 and
(8)
8
of
the MOU,9
which
prohibited work stoppages, by
SEIU's
alleged actions and inactions in connection with a sick
out by
CNA's
at the Home, which lasted from approximately July 1 to July 3, 2005.
	The
ALJ
found that SEIU's actions or inactions may have breached the terms
of
the MOU. The three
issues presently before the Board regarding the alleged breach
of
contract are whether the
SEIU "condoned" the sick-out, failed to "encourage employees violating the section to return
to work," or failed to provide notice to SEIU staff
of
their obligations under Article 5
.1
.
First, it is arguable that SEIU "condoned" the sick-out. The term "condone" in
Article 5.1
of
the contract is not defined. The only evidence
of
the past interpretation
of
that
phrase is that, in 2002, CSEA President Kenny was quoted in a newspaper article as stating,
7Article 5.1 (A) provided that "neither the Union nor its agents nor any employee, for
any reason, will authorize, institute, aid, condone, or engage in a work slowdown, work
stoppage, strike, or any other interference with the work and statutory functions or obligations
of
the State."
8Article 5.
l(B) provided that the "Union agrees to notify all
of
its officers, stewards,
chief stewards, and staff
of
their obligation and responsibility for maintaining compliance with
this section, including the responsibility to remain at work during any activity which may be
caused or initiated by others, and to encourage employees violating this section to return to
work."
9Although the MOU expired on June 30, 2005, its terms continued in effect pursuant to
Section 3517.8 of the Dills Act. That section expressly provides that the terms
of
an expired
agreement, including "any no strike provisions," continue in effect
if
the parties have not
agreed to a new MOU and have not reached an impasse in negotiations, which was the case
here.
9

"We've encouraged them to go to work." The federal decision in Latas Libby's, Inc. v. United
Steelworkers of America (1 st Cir. 1979) 609 F.2d 25 [102 LRRM 2796] (Latas Libby's, Inc.)
may provide some guidance. 10 That case addressed the issue of whether a union "condoned" a
work stoppage in violation of a no-strike clause. In that case, the court reviewed a provision in
a labor contract stating that "No officer or representative of the Union ... shall authorize,
instigate aid or condone [any strike]." (Id. at p. 28.) Although the record in that case indicated
that the union representative, Velazquez, had "repeatedly advised the officers of the local that
the strike was illegal," the court found that his conduct "constituted condonation of the strike"
in violation of the contract. The court explained,
Webster's Third New International Dictionary ( 1966) defines
'condone' as '(to) permit the continuance of; the American
Heritage Dictionary (1976) defines it as 'to forgive, overlook, or
disregard (an offense) without protest or censure.' 	The express
terms of the no-strike provision, read literally, thus prohibit the
Union from disregarding a strike and permitting its continuance
once it has commenced, regardless of whether the Union itself
authorized or instigated the strike. We think it clear that this
language imposes an obligation on the Union to take some
affirmative steps toward ending a strike. 	We need not explore the
limits of this obligation, for the Union, through [Alejo)
Velazquez, made only the most minimal effort to end this strike.
Velazquez testified that when he spoke to [Ramon] Hernandez on
Friday, the day after the commencement of the strike, he told
Hernandez, 'listen, there is a violation of the agreement and you
should try to go back to work.' 	Velazquez did not threaten to
impose sanctions against Hernandez and other Local officials if
they did not end the strike immediately, nor did he unequivocally
order Hernandez to terminate the strike. Even after Hernandez
responded that he had tried unsuccessfully to convince the
workers to return, Velazquez declined to return to Villalba on
Friday to try to arrange a meeting with management, thus
ensuring that the stoppage would continue after the weekend. We
10We would point out that Latas Libby's, Inc. was not a National Labor Relations Board
(NLRB) unfair practice charge case but an action for breach of contract under Section 301 of
the Labor Management Relations Act, 29 U.S.C. sec. 185.
10

conclude that the only significant step taken by Velazquez to end
the strike before Tuesday, October 25 explaining to Hernandez
that the strike was illegal was foreseeably ineffective.
(Latas Libby's, Inc. at pp. 29-30.)
Thus, under the standard in Latas Libby's, Inc., a no-strike clause prohibiting a union
from "condoning" a strike requires the union to "take some affirmative steps toward ending a
strike." The court found that merely informing a local union official that the strike violated the
contract was not sufficient. Under the circumstances of Latas Libby's, Inc., the court found
such limited action to be "foreseeably ineffective," and thus in violation of the contract. The
court also explained that, in that case, "at no time during the course of the strike did
Velazquez, or any other official of the Union, publicly disavow or censure the actions of the
striking workers." Additionally, Velazquez had said "' if you want to go on strike, go ahead."'
Thus, the court found that the union had "condoned" the strike in violation of the contract. (Id.
at p. 30.)11
As the ALJ found, under the standard discussed in Latas Libby's, Inc., SEID could be
found to have breached its obligation not to "condone" a sick-out. The sick-out occurred in the
heat of a "war" against the Home spearheaded by SEID Labor Relations Representative Prude.
Prude held a large union meeting at the Chula Vista library just a few days prior to the sick
out. Although Prude denied discussing the sick-out at this meeting, it appears likely that the
sick-out was planned, or at least discussed, during this meeting. Chief Steward Brown testified
that the CNA's were a "passive" group, who were difficult to contact en masse due to the fact
that they worked three different shifts and had no work e-mail accounts. Additionally, Prude
11 Similarly, the NLRB indicated in Arrow Sash & Door Co. et al. (1985) 276 NLRB
1166 [120 LRRM 1172], that a union might be found to have "condoned" a strike where the
union's business representative stated that a sick-out "wasn't a very good idea, but, you know,
if they wanted to do it, go ahead," and "it would be hard for the company to prove that they
were not sick on that day."
11

called a supervisor at the Home at 9: 10 p.m. on July 1, the first day of the sick-out, to complain
that the Home would not accept doctor's notes. This circumstantial evidence 12 tends to prove
that Prude had knowledge of the planned sick-out. 	If the CNA's discussed the sick-out during
the June 28 meeting, and Prude had knowledge of it but failed to stop the sick-out, that would
arguably constitute "condoning" the sick-out. Rather than stating that he told the CNA's that a
sick-out would violate the contract, Prude instead denied any knowledge of it. Prude's denial
of knowledge is difficult to believe, given his attendance at the June 28 meeting and the fact
that he admits that he called Oasin, the supervisor, on July 1, as well as the contradictions
between Prude's testimony and the testimony of Baratz and Brown regarding when Prude was
notified of the sick-out. Because we resolve this case based upon the issue of whether there
was a unilateral change (as discussed infra), however, we find it unnecessary to rule on
whether SEIU "condoned" the sick-out in violation of the contract.
Second, it is arguable whether SEIU failed to provide sufficient encouragement for
"sick" employees to return to work. 	SEIU leadership (Hard, Harris, and Baratz) relied upon
Prude to handle the sick-out. Prude testified that he telephoned Brown and Solario to ascertain
whether there was a sick-out. Prude alleges that they both told him that the union had not
organized a sick-out. Nevertheless, Prude alleges that he told Solario, and possibly Alford
Mayo, to tell the CNA's that a sick-out was prohibited by Article 5.1. 	(Unfortunately, neither
We note that reliance upon circumstantial evidence is permissible to a certain extent.
The Board relies upon such evidence in cases of alleged retaliation. "As direct evidence of
nexus is seldom available, it may be shown by circumstantial evidence." (Contra Costa
Community College District (2003) PERB Decision No. 1520.) Additionally, California law
recognizes that circumstantial evidence must often be used to establish fraudulent intent to
breach a contract (Locke v. Warner Bros., Inc. (1997) 57 Cal.App.4 th 354 [66 Cal.Rptr.2d
921 ); as well as conspiracy to interfere with a contract (Allen v. Powell (1967) 248 Cal.App.2d
502, 508 [56 Cal.Rptr. 715).)
12

Solaria nor Alford-Mayo testified at the hearing, so it is unknown what actions they took,
if
any.)
SEIU argues, "Unlike Latas Libby['s], the Union had little opportunity to confirm that
there was an actual 'sick-out' in effect, until after it was over."
13
Additionally, SEIU argues
that Prude took actions that were expected to be effective (i.e., he contacted Alford-Mayo and
Solario, after consulting with Brown). 	SEIU points to the ALJ's finding that the absenteeism
rate diminished after Prude contacted the stewards, and concludes that Prude's action was not
ineffectual.
As discussed above, circumstantial evidence indicates that Prude may have "condoned"
the sick-out. Additionally, Prude's contradictory testimony regarding when he was notified
of
the sick-out casts doubt upon Prude's alleged efforts to encourage the CNA's to return to work.
Moreover, there is no evidence, aside from Prude's alleged calls to Solaria, and possibly
Alford-Mayo, and Dellaro's reported directive to Prude to spread the word about Article 5.1,
that SEIU took any other actions during the sick-out to encourage the CNA's to return to work.
SEIU took no subsequent actions to publicly disavow or censure the actions
of
the CNA's who
participated in the sick-out. Thus, SEIU may have breached the provision
of
Article 5
.1
requiring it to encourage "sick" employees to return to work.
On the other hand, it appears that SEIU satisfied the provision under Article 5.1
requiring it to "notify all
of
its officers, stewards, chief stewards and staff
of
their obligation."
Hard testified that he repeatedly informed employees
of
the requirements
of
Article 5.1.
In addition to Latas Libby's, Inc., the State also cites Arn. Airlines, Inc. v. Allied
Pilots Ass'n. (5 th
Cir. 2000) 228 F.3d 574 [165 LRRM 2449]. That case is distinguishable
because it involved the issue of whether the union adequately complied with a temporary
restraining order requiring the union to "take 'all reasonable steps within their power' to
prevent continuation or encouragement of the sick-out." (Id. at p. 577.) This appears to
involve a different standard than determining whether the union has violated a contractual
provision requiring it not to "condone" any work stoppage.
13

Additionally, Prude testified that his supervisor, Dellaro, told him to spread the word about the
no-strike clause. Prude also testified that he told Steward Solaria to tell the CNA's that a sick
out would violate the contract. Finally, Chief Steward Brown testified that she told employees
in the lunch room at the Home that sick-outs or strikes were not permitted by the MOU.
Based upon the record, the ALJ concluded that SEIU's actions or inactions in this case
may have constituted a breach
of
contract under the standard
of
Latas Libby's, Inc. The ALJ
found, however, that an analysis simply applying the rule
of
Latas Libby's, Inc. is insufficient,
because that case addressed only whether the union had violated the contract. The ALJ found
that federal case law interpreting Section 301
of
the Labor Management Relations Act, 29
U.S.C. sec. 185, was not controlling because that section provides a cause
of
action for breach
of
a collective bargaining contract,
14
rather than for a unilateral change in policy or failure to
bargain in good faith. 	The ALJ concluded that there may have been a contract violation in this
case, but that the key issue is whether such a breach had a generalized impact or continuing
effect sufficient to constitute a unilateral change. We agree.
Whether the Alleged Contract Violation Had a Generalized Effect or Continuing Impact
We find that the ALJ correctly concluded that there was no change in policy in this
case. 	Section 3514.S(b)
of
the Dills Act provides that the Board cannot enforce a labor
contract where an alleged breach is not also an independent violation
of
the Act. It states,
The board shall not have authority to enforce agreements between
the parties, and shall not issue a complaint on any charge based
on alleged violation
of
such an agreement that would not also
constitute an unfair practice under this chapter.
14
Section 301(a) makes collective bargaining agreements judicially enforceable.
(Carbon Fuel Co. v. United Mine Workers of America (1979) 444 U.S. 212,216 [102 LRRM
3017] .)
14

In order for a breach of contract to amount to a unilateral change, the breach must have
a "generalized effect or continuing impact" that would constitute a change in policy. The
Board explained in Grant,
[S]ubsection 354 l .5(b) does not divest PERB of jurisdiction to
resolve an unfair practice charge simply because the employer's
conduct also constitutes the breach of an existing collective
agreement. Rather, subsection 3541.5(b) grants PERB the
authority to resolve an unfair practice charge even if it must
interpret the terms of a collective agreement to do so. There is, of
course, no doubt that in the absence of a collective agreement
PERB has jurisdiction over all conduct which allegedly violates
the Act. 	That such conduct might also breach an existing
agreement does not defeat the Board's jurisdiction, though it may
give rise to a separate remedy for breach of contract. Victor
Valley Joint Union High School District ( 12/31 /81) PERB
Decision No. 192; C & C Plywood Corporation (1967) 385 U.S.
421 [64 LRRM 2065]. 	[Fn. omitted; emphasis in original.]
The Act is designed to foster the negotiation process. Such a
policy is undermined when one party to an agreement changes or
modifies its terms without the consent of the other party. PERB
is concerned, therefore, with a unilateral change in established
policy which represents a conscious or apparent reversal of a
previous understanding, whether the latter is embodied in a
contract or evident from the parties' past practice. Anaconda
Aluminum Co. (1966) 160 NLRB 35 [62 LRRM 1370], Perry
Rubber Co. (1961) 133 NLRB 275 [48 LRRM 1630]. In the
words of the National Labor Relations Board:
' ... [Such] conduct, ... [amounts] to a rejection of the most
basic of collective bargaining principles ... the acceptance and
implementation of the bargain[ing] reached during negotiations.
Sea Bay Manor Home (1980) 253 NLRB [739, 741] [106 LRRM
1010, 1012].'
This is not to say that every breach of contract also violates the
Act. 	Such a breach must amount to a change of policy, not
merely a default in a contractual obligation, before it constitutes a
violation of the duty to bargain. This distinction is crucial. 	A
change in policy has, by definition, a generalized effect or
continuing impact upon the terms and conditions of employment
of bargaining unit members. 	On the other hand, when an
employer unilaterally breaches an agreement without instituting a
new policy of general application or continuing effect, its
conduct, though remediable through the courts or arbitration,
15

does not violate the Act. The evil of the employer's conduct,
therefore, is not the breaching of the contract per se, but the
altering of an established policy mutually agreed upon by the
parties during the negotiation process. Walnut Valley Unified
School District (3/30/81) PERB Decision No. 160; C & S
Industries (1966) 158 NLRB 454 [62 LRRM 1043]. By
unilaterally altering or reversing a negotiated policy, the
employer effectively repudiates the agreement. 	Sea Bay Manor
Home, supra.
(Grant at pp. 7-9, emphasis added.)
The Board in Grant found that a school district made an unlawful unilateral change by
posting a notice of a change in the district's employee transfer policy. However, the Board
found that there was no unilateral change with regard to an alleged alteration in policy
regarding health benefits, because the contract was unambiguous and did not support the
association's allegations. Finally, the Board found that there was no unilateral change with
regard to an alleged change in policy regarding contingency pay:
[T]he facts asserted by the Association actually challenge the
District's application of the contract's provision. The District
does not deny its contractual obligation but claims it properly
implemented the provision both as to the use and the amount of
the surplus funds. 	We find in these competing claims nothing
which demonstrates a 'policy change.'
(Grant at p. 12, emphasis added.)
The Board has found in a number of cases that one-time breaches of contract are not
unilateral changes. In Trustees of the California State University (1997) PERB Decision
No. 1243-H, the Board held that the CSU's refusal to make a one-time payment to one
bargaining unit member was not a unilateral change, because the alleged violation did not have
a generalized effect or continuing impact. 	In East Side Union High School District (1997)
PERB Decision No. 1236, the Board upheld the dismissal of a charge alleging that one teacher
was assigned to teach outside of his area, in violation of the collective bargaining agreement.
The Board found that this contract violation did not have a generalized effect. Additionally, in
Riverside Unified School District (1987) PERB Decision No. 639, the Board held that an
16

employer's action that was limited to one employee, in a particular arbitration proceeding, did
not amount to a unilateral change. In Santa Paula School District (1985) PERB Decision
No. 505, the Board found that an isolated discriminatory transfer was not sufficient to
constitute a unilateral change in policy.
Additionally, the Board has held that there is no unilateral change where an employer
merely takes a legal position that is contrary to that of the union. (Trustees of the California
State University (1997) PERB Decision No. 1231-H, discussing the interpretation of
contractual grievance provisions.) Similarly, in Fall River Joint Unified School District (1998)
PERB Decision No. 1259, the Board held that a mere challenge to the application of a
contractual provision was not sufficient to establish a unilateral change. In that case, the union
claimed that the district defaulted on its obligation to inform an employee of all other positions
for which he was qualified, because it merely informed him of some of those positions. 	The
Board found that the union had failed to demonstrate a change to the policy embodied in the
contract, and thus did not meet the Grant standard for a unilateral change. (Id. at p. 26.) These
cases hold that where the meaning of the relevant contract provision is ambiguous, such that
the action in question does not clearly breach the contract, a unilateral change is not
established. 15
The Board has also held that a breach of contract amounts to a unilateral change where
the party in breach asserts that the contract authorizes its conduct. In Hacienda La Puente
Unified School District (1997) PERB Decision No. 1186, the Board held that the district's
15Note that this rule applies where a hearing before an ALJ has already been held, and
the parties have presumably had the opportunity to present evidence supporting their
interpretation of the contract. In contrast, where an unfair practice charge alleges a violation of
contract, and the meaning of a contract provision is ambiguous on its face, the Board has held
that a complaint must issue to provide an opportunity for the parties to present evidence as to
their intent in drafting the provision. (Fullerton Joint Unified School District (2004) PERB
Decision No. 1633, reversing dismissal of a charge alleging that the district unlawfully
changed the work shifts of custodians temporarily during the graduation period.)
17

unilateral change to a unit member's shift was a change in policy, rather than an isolated
breach, because the district relied upon its interpretation
of
the management rights clause in the
contract and believed that the clause authorized it to make the change in shift. In Fremont
Unified School District (1997) PERB Decision No. 1240, the Board upheld an ALJ' s
determination that the district had "abandoned" its past practice and made an unlawful
unilateral change when it did not use a "qualified re-hire" list that it had used during the past
two years pursuant to the CBA. The district had argued that it was permitted to do so based
upon another section
of
the CBA, as well as the Education Code. These cases are
distinguishable from the case before the Board, in which the evidence did not show that SEIU
ever stated that it was not required to comply with Article 5.1.
The Board has held that contract breaches are unilateral changes where there is a
change in policy that is generally applicable to future situations. In State
of
California
(Department
of
Youth Authority) (2000) PERB Decision No. 1374-S, the Board held that the
state's change in the pattern
of
union representation at one institution was not a mere default in
a contractual obligation, but constituted an unlawful unilateral change in policy. The Board
reasoned that the state's denial
of
permission for a steward to travel to other institutions was
not a one-time breach, but rather, was generally applicable to future situations. (Id. at p. 12.)
In San Jacinto Unified School District (1994) PERB Decision No. 1078, the Board held that a
district memorandum stating that "the following schedule will be used for [maintenance]
personnel to cover home football games," which was applicable to five specified football
games, constituted a unilateral change. Although the duration
of
the change was temporary,
the Board found that it changed the nature of duties at football games. Additionally, in
Klamath-Trinity Joint Unified School District (1993) PERB Decision No. 1003, the Board held
that the district's decision that certain conditions deprived teachers of additional educational
18

supplies had a generalized effect and continuing impact. Although the decision potentially
affected only four teachers, the Board found that it had the potential to affect more in ensuing
years, and thus constituted a unilateral change.
In summary, these cases hold that a contract breach must be generally applicable to
future situations, either through the circumstances or the parties' assertion that their conduct is
legally permitted, to have a "generalized effect or continuing impact" sufficient to constitute a
unilateral change. 	Additionally, the interpretation of a contractual provision must be
sufficiently clear to establish a breach that amounts to a unilateral change.
In a case involving a strike, the Board in San Diego Unified School District (1980)
PERB Decision No. 137 (San Diego) held that the district's failure to abide by an agreement
prohibiting sanctions following settlement of the strike constituted a unilateral change. 	The
Board found that the district's action "amounted to a unilateral change of a subject already
agreed to by the parties, potentially affecting a wide range of employee working conditions
without notice to or negotiations with the exclusive representative." (Id. at p. 19.) San Diego
is distinguishable from the present case, because the "no sanctions" agreement in that case
applied only to the particular strike at issue. The district's violation of that agreement thus
repudiated the entire agreement. That case is also distinguishable because the Board found that
it involved action by the district constituting a unilateral change in policy. 	In this case, the
record indicates that SEIU management did not make a unilateral change.
In the present case, the record does not establish that SEIU management - Hard, Baratz,
or Harris - implemented a new policy of repudiating the no-strike clause. Instead, management
directed Prude to look into the sick-out. By the time the July 4 th holiday had ended, and Hard,
Baratz, and Harris had returned to work, the sick-out had ended. The only argument that SEIU
management implemented a unilateral change is that they were not more pro-active in
19

determining the status of Prude's efforts during the sick-out, and that they failed to send a post
hoc letter disavowing the sick-out. Additionally, SEIU never argued that it was legally
permitted to "condone" the strike or to fail to encourage employees to return to work. Nothing
in the record indicates that SEIU had breached Article 5 .1 in the past, or that it would breach
Article 5.1 in the future. 	We find that, under the circumstances of this case, although it is
arguable whether or not SEIU breached the contract in connection with the sick-out at the
Home, SEIU management did not implement a unilateral change in policy.
With regard to Prude, there is circumstantial evidence that he "condoned" the sick-out.
The fact that Prude was admittedly in the process of orchestrating a "war" against the Home
while the sick-out occurred, as well as the fact that he organized the June 28 union meeting
held just prior to the sick-out, is strong evidence that he had knowledge of the sick-out and
may have "condoned" it.
However, the evidence does not establish that Prude made a unilateral change in
policy. Prude did not assert that a sick-out was permitted under the contract. There was no
evidence that Prude had condoned any work stoppages in the past, or that he would do so in the
future.
Moreover, under the circumstances, it appears that Prude, as a labor relations
representative, had no authority to make a unilateral change in policy regarding Article 5 .1 on
behalf of SEIU. The Board applies common law principles to determine the existence of an
agency relationship. 	(Inglewood Unified School District (1990) PERB Decision No. 792
(Inglewood), affd., Inglewood Teachers Assn. v. Public Employment Relations Bd. (1991)
227 Cal.App.3d 767 [278 Cal.Rptr. 228] .) The burden of proof is on the party asserting the
existence of the agency. 	(Inglewood.) The charging party must prove the agency relationship
by actual or apparent authority by establishing representation by the principal (SEIU) of the
20

agency; justifiable reliance by the charging party on that representation, and a change in
position by the charging party as a result of the agency. 	(Id. at p. 20.) As the court stated in
Inglewood Teachers Assn. v. PERB, supra, 227 Cal.App.3d 767,
Actual authority is that which 'a principal intentionally confers
upon the agent, or intentionally, or by want of ordinary care,
allows the agent to believe himself to possess.' 	(Civ. Code, sec.
2316.) Ostensible or apparent authority is that which 'a principal,
intentionally or by want or ordinary care, causes or allows a third
person to believe the agent to possess.' 	(Civ. Code, sec. 2317.)
(Id. atp. 781.)
"Mere surmise as to the authority of an agent is insufficient to impose liability on a
principal based on a theory of apparent authority." 	(Inglewood at p. 20, citation omitted.)
We note that Prude was an agent of SEIU with regards to the contract violation.
Although there is no evidence that SEIU management gave Prude any actual authority to
condone a sick-out, we find that he had apparent authority to do so. Prude organized the
June 24 protest and June 28 meeting. Both Hard and Hackett were involved with the June 24
protest, and thus SEIU leadership sanctioned at least some of Prude's efforts against the
management of the Home. The State notified SEIU management of the sick-out by telephone
on the first day, July 1. After initially requesting that Prude look into the sick-out, SEIU
management neglected to follow through during the ensuing three days by ascertaining the
status of the sick-out and taking affirmative steps to encourage employees to return to work, as
would be required under Latas Libby's, Inc. After the sick-out ended, SEIU management did
not issue any statements disavowing the sick-out. Thus, we find that SEIU management
"ratified" Prude's actions and inactions with regard to the alleged contract violation. If Prude
breached Article 5 .1, it appears that SEIU would be liable under an agency theory for breach of
contract.
21

On the other hand, Prude had neither actual nor apparent authority to make a change in
policy regarding Article 5 .1. Although it is possible that SEIU management violated
Article 5.1 by neglecting to follow through and take affirmative steps to stop the sick-out, the
record indicates that SEIU management did not "ratify" any policy change. The letter that
Baratz sent to the State on July 6 simply asserted that there had been "no concerted activity" at
the Home, and claimed that SEIU had complied with its obligations under Article 5.1.
Finally, the record indicates that SEIU did not repudiate Article 5.1, and instead
fulfilled its obligation under Article 5.1 to "notify all of its officers, stewards, chief stewards
and staff of their obligation" under the no-strike provision. Hard testified that he repeatedly
informed union members of the requirements of Article 5 .1; Prude testified that Dellaro told
him to spread the word about the no-strike clause; Prude testified that he told Solaria to tell the
CNA's that a sick-out would violate the contract; and Brown testified that she told employees
in the lunch room at the Home that sick-outs or strikes were not permitted by the MOU.
Thus, we find that Prude's actions and/or inactions at most may have amounted to a
one-time breach of contract. Under the circumstances, the record lacks sufficient evidence that
SEIU made any policy change that would be generally applicable to future situations. That is,
SEIU's alleged actions and inactions had no "generalized effect or continuing impact"
sufficient to constitute a unilateral change. Our decision would possibly be different if the
union had violated Article 5 .1 in the past, or if the evidence indicated that SEIU management
did more than negligently fail to follow through and ensure a stronger union response in
compliance with Article 5.1 while the sick-out was occurring.
The State argues that in two prior sympathy strike cases, PERB stated that "'if there
had been express contractual language prohibiting the conduct in question, then the violation
of such contractual language/intent would equate to a unilateral change." (Oxnard Harbor
22

District (2004) PERB Decision No. 1580-M and Regents of the University of California (2004)
PERB Decision No. 1638-H.) We find that those cases are not controlling. The Board stated
therein, in dicta, that sympathy strikes are not prohibited by common law, and that such a
strike would only be an unfair practice if prohibited by a CBA. However, those cases did not
involve express contractual language prohibiting the sympathy strike in question. In those
cases, the Board did not need to address whether the alleged contract breach had a "generalized
effect or continuing impact," because it found that there was no breach. Therefore, the Board's
comments about the presence of contractual language prohibiting the strike conduct are not
controlling. As stated earlier, we would find that not every breach of a no-strike clause
becomes a unilateral change. Instead, the breach must amount to a repudiation of the no-strike
clause and thus a change in policy.
Additionally, the State argues that the breach in this case had a "generalized effect"
upon bargaining unit members, because (1) the striking employees were docked pay and
subject to disciplinary action for the sick-out; (2) non-striking employees had to give up their
Fourth of July week-end to work overtime and perform the work of the striking employees;
and (3) the change in policy negatively impacted the veterans who reside in the Skilled
Nursing Unit at the Home. However, these alleged effects of the sick-out were not the type of
"generalized effect or continuing impact" contemplated in the Grant test, because these
impacts were simply the effects of a one-time alleged breach of contract. These impacts do not
indicate that SEIU will breach Article 5.1 in the future, or that SEIU has implemented any
change in policy with regard to Article 5 .1.
Therefore, although it is arguable that SEIU "condoned" the sick-out in this case and
engaged in a one-time breach of Article 5.1 of the MOU, the record does not show that SEIU
23

made a unilateral change in policy. The Board therefore affirms the ALJ' s dismissal of the
unfair practice charge and complaint.
ORDER
The complaint and underlying unfair practice charge in Case No. SA-C0-278-S are
hereby DISMISSED WITHOUT LEAVE TO AMEND.
Member Wesley joined in this Decision.
Member McKeag's dissent begins on page 25.
24

McKEAG, Member, dissenting: I respectfully dissent from the majority's ruling that
Service Employees International Union, Local 1000, CSEA (SEIU) did not commit an
unlawful unilateral change when it condoned a sick-out in violation of Article 5 .1 of the
memorandum of understanding (MOU). The majority concluded the State of California
(Departments of Veterans Affairs & Personnel Administration) (State) established the first,
second and fourth elements of its unilateral change allegation, but failed to establish the third.
According to the majority, "although it is arguable that SEIU 'condoned' the sick-out in this
case and engaged in a one-time breach of Article 5.1 of the MOU, the record does not show
that SEIU made a unilateral change in policy." Although I agree with the majority that SEIU
condoned the sick-out, I disagree that SEIU's conduct did not constitute a change in policy.
Accordingly, for the reasons set forth below, I conclude SEIU committed an unlawful
unilateral change when it condoned the sick-out.
A. 	SEIU's Conduct had a Generalized Effect on the Terms and Conditions of Employment
Section 3514.S(b) of the Ralph C. Dills Act provides that the Public Employment
Relations Board (PERB or Board) cannot issue a complaint on any charge based an alleged
breach of a collective bargaining agreement, unless the breach also constitutes an unfair labor
practice. As the Board explained in Grant Joint Union High School District (1982) PERB
Decision No. 196 (Grant), in order for a breach of contract to constitute a unilateral change, the
breach must have a "generalized effect or continuing impact" that would constitute a change in
policy. 	It is noteworthy that the Grant definition of "policy" is in the alternative. Thus, the
presence of either a generalized effect or a continuing impact will constitute a change of
policy. (State of California (Department of Mental Health) (1990) PERB Decision No. 840-S
(Mental Health).)
25

In the instant case, only 12 of 48 (25%) certified nurse assistants (CNAs) who were
scheduled to work at the Chula Vista Veterans Home (Home) on July 1, 2005, reported for
duty. 	On the following day, only 31 of 48 (65%) CNAs reported for duty, and on the third day,
only 48 of 58 (83%) employees reported for duty. The employees who participated in the sick
out had their pay docked for the days they failed to report to duty, and approximately 44 of
these employees were subjected to disciplinary action. 	Conversely, the employees who
reported to duty were faced with an increased workload (and potential job duties for which
they were not trained) to accommodate their colleagues who failed to report to duty.
Clearly, the sick-out effected virtually every bargaining unit member who either
worked or was scheduled to work at the Home over the Fourth of July weekend. Moreover,
there is no doubt that the sick-out had a negative impact on the resident-patients of the Home.
Because I find SEIU condoned the work action, I conclude SEIU's conduct significantly
contributed to the difficult situation faced by the Home employees and resident-patients during
this time. Accordingly, I find SEIU's conduct had a generalized effect upon the terms and
conditions of employment of bargaining unit members. 1
B. 	SEIU's Conduct had a Continuing Impact on the Terms and Conditions of Employment
As stated above, 44 CNAs were disciplined for participating in the sickout.2
Consequently, these employees had adverse actions included in their personnel file which may
1Admittedly, the sick-out only occurred at one facility and only involved a small
portion of the employees in the bargaining unit. However, the Board has found a generalized
effect on the terms and conditions of employment in cases involving only one facility. 	(Mental
Health.) In addition, the Board has found that the change need not effect every member of the
bargaining unit. 	(Jamestown Elementary School District (1990) PERB Decision No. 795.)
Thus, the fact that the sick-out occurred only at the Home and only impacted the bargaining
unit employees assigned to that facility does not preclude a finding that SEIU's conduct
amounted to an unlawful unilateral change.
2Five of these employees did not appeal the adverse action.
26

impact subsequent disciplinary actions, as well as promotional and/or transfer opportunities in
the future. 	The remaining 39 employees appealed the adverse actions. However, these
employees, even if they prevailed on appeal, were subjected to the rigors of a State Personnel
Board appeal that continued long after the sick-out ran its course. For these reasons, I
conclude the sick-out had a continuing impact on the conditions of employment for bargaining
unit members.
C. 	SEIU's Conduct Undermined the Bargaining Relationship Between the Parties
As explained by the Board in Grant:
The Act is designed to foster the negotiation process. 	Such a
policy is undermined when one party to an agreement changes or
modifies its terms without the consent of the other party. PERB
is concerned, therefore, with a unilateral change in established
policy which represents a conscious or apparent reversal of a
previous understanding, whether the latter is embodied in a
contract or evident from the parties' past practice. Anaconda
Aluminum Co. (1966) 160 NLRB 35 [62 LRRM 1370), Perry
Rubber Co. (1961) 133 NLRB 275, [48 LRRM 1630].
Quoting Sea Bay Manor Home for Adults (1980) 253 NLRB 739, 741 [106 LRRM
101 OJ, the Board indicated that the acceptance and implementation of an agreement reached
during negotiations is the "most basic of collective bargaining principles."
Throughout the instant proceedings, SEIU repeatedly acknowledged its obligations
under Article 5.1 of the MOU, yet failed to take any meaningful action to either abate the sick
out or otherwise encourage the CNAs to return to duty. 	In contrast, when faced with a sick-out
by nurses in 2002, SEIU contacted the nurses, told them SEIU could not condone the action,
and encouraged them to return to duty. SEIU also posted a notice on its website discouraging
sick-outs and strikes by the nurses. Based on its previous conduct, SEIU clearly knew what
steps could be taken to help avert a potential sick-out, yet it failed to take any meaningful
actions in this instance. I find SEIU's failure to take any meaningful action to avert the sick
27

out was a conscious reversal
of
Article 5
.1
of
the MOU. In so doing, SEIU undermined the
negotiation process between the parties which, according to the Board in Grant, is precisely the
conduct about which PERB is concerned.
It is also noteworthy that there is nothing in the record to suggest SEIU would refrain
from engaging in this conduct in the future. 	To the contrary, notwithstanding its inaction,
SEIU denies any wrongdoing and instead blames the State for the sick-out and the
consequences thereof. 	The State, however, was not responsible for the hardships faced by the
nursing staff, the administrative staff and resident-patients
of
the Home over the Fourth
of
July
weekend. That responsibility lies solely with SEIU. 	When coupled with the fact that the sick
out potentially jeopardized the health and safety
of
resident-patients
of
the Home, SEIU' s
conduct was particularly egregious.
Based on the foregoing, I do not believe SEIU committed an isolated breach
of
the
contract. Rather, I conclude SEIU consciously repudiated Article 5.1 and, therefore, effected a
change in policy. Thus, because the State established all four elements
of
the unilateral change
test, I would find SEIU committed an unlawful unilateral change when it condoned the sick
out.
28