State of California (Department of Forestry and Fire Protection) (PERB 2162S)

STATE OF CALIFORNIA	STATE OF CALIFORNIA
DECISION OF THE	DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD	PUBLIC EMPLOYMENT RELATIONS BOARD
CALIFORNIA	CALIFORNIA DEPARTMENT OF FORESTRY	DEPARTMENT OF FORESTRY
FIREFIGHTERS,	FIREFIGHTERS,
Charging Party,	Charging Party,
V.
STATE OF CALIFORNIA (DEPARTMENT OF	STATE OF CALIFORNIA (DEPARTMENT OF
FORESTRY & FIRE PROTECTION),	FORESTRY & FIRE PROTECTION),
Respondent.	Respondent.
Case No. SA-CE-1735-S	Case No. SA-CE-1735-S
PERB Decision No. 2162-S	PERB Decision No. 	2162-S
February 10, 2011	February 10, 2011
:	Appearances: Carroll, Burdick & McDonough by Gary M. Messing and Jason H. Jasmine,	Carroll, Burdick & McDonough by Gary M. Messing and Jason H. Jasmine,
Attorneys, for California Department of Forestry Firefighters; State of California (Department	Attorneys, for California Department of Forestry Firefighters; State of California (Department
of Personnel Administration) by Will M. Yamada and Jenny L. Esquivel, Labor Relations	of Personnel Administration) by Will M. Yamada and Jenny L. Esquivel, Labor Relations
Counsel, for State of California (Department of Forestry & Fire Protection).	Counsel, for State of California (Department of Forestry & Fire Protection).
Before Dowdin Calvillo, Chair; Mckeag and Wesley, Members.	Before Dowdin Calvillo, Chair; McKeag and Wesley, Members.
DECISION	DECISION
McKEAG, Member: This case comes before the Public Employment Relations Board	McKEAG, Member: This case comes before the Public Employment Relations Board
(PERB or Board) on appeal by the State of California (Department of Forestry & Fire	(PERB or Board) on appeal by the State of California (Department of Forestry & Fire
Protection) (State or Cal Fire) of a proposed decision by an administrative law judge (ALJ).	Protection) (State or Cal Fire) of a proposed decision by an administrative law judge (ALI).
The	The charge alleged that the State violated the Ralph C. Dills Act (Dills Act or Act) w	charge alleged that the State violated the Ralph·c. Dills Act (Dills Act or Act)1 when	hen itit
failed to withhold fair share fees for retired annuitants employed in the bargaining unit	failed to withhold fair share fees for retired annuitants employed in the bargaining unit
represented by California Department of Forestry Firefighters (CDFF). 	CDFF alleged this	represented by California Department of Forestry Firefighters (CDFF). CDFF alleged this
conduct constituted a violation of Dills Act section 3519(a), (b) and (c).	conduct constituted a violation of Dills Act section 3519(a), (b) and (c).
T
Appearances
The	The ALJ held that retired annuitants were included in bargaining unit 8 (BU 8) by	ALJ held that retired annuitants were included in bargaining unit 8 (BU 8) by
operation of Unit Determinationfor the State of California (1979) PERB Decision No. 110-S	operation of Unit Determination for the State of California (1979) PERB Decision No. 1 10-S
1 The	he Dills Act is codified at Government Code section 3512 et seq. Unless otherwise	Dills Act is codified at Government Code section 3512 et seq. Unless otherwise
indicated, all statutory references herein are to the Government Code.	indicated, all statutory references herein are to the Government Code.

22
the	(State Unit Determination), the Board's original bargaining unit determination for State	(State Unit Determination), 	Board's original bargaining unit determination for State
employees. Accordingly, the ALJ concluded that the State committed an unlawful unilateral	employees. Accordingly, the ALJ concluded that the State committed an unlawful unilateral
change on a matter within scope when it refused to withhold fair share fee deductions from the	change on a matter within scope when it refused to withhold fair share fee deductions from the
paychecks of retired annuitants. The ALJ ordered the State to cease and desist from refusing to	paychecks of retired annuitants. The ALJ ordered the State to cease and desist from refusing to
allow fair share fee deductions from the paychecks of retired annuitants and to make CDFF	allow fair share fee deductions from the paychecks of retired annuitants and to make CDFF
whole for fair share fees that should have been deducted from the paychecks of retired	whole for fair share fees that should have been deducted from the paychecks of retired
annuitants since October 2008.	annuitants since October 2008.
We have reviewed the entire record in this case and find retired annuitants performing	We have reviewed the entire record in this case and find retired annuitants performing
work associated with BU 8 were not automatically placed in BU 8 by operation of the State	work associated with BU 8 were not automatically placed in BU 8 by operation of the State
Unit Determination case. We further find that since retired annuitants are not in BU 8, the	Unit Determination case. 	We further find that since retired annuitants are not in BU 8, the
State did not have a duty to collect fair share fees on behalf of CDFF from retired annuitants	State did not have a duty to collect fair share fees on behalf of CDFF from retired annuitants
performing work as firefighters. Accordingly, the Board reverses the ALJ's proposed decision	performing work as firefighters. 	Accordingly, the Board reverses the ALJ's proposed decision
and dismisses the complaint and underlying unfair practice charge.	and dismisses the complaint and underlying unfair practice charge.
FINDINGS OF FACT	FINDINGS OFF.ACT
Cal Fire is a state employer within the meaning of Dills Act section 35 l 3(j). CDFF is	Cal Fire is a state employer within the meaning of Dills Act section 3513(j). CDFF is
the recognized employee organization within the meaning of Section 35 l 3(b) and the exclusive	the recognized employee organization within the meaning of Section 3513(b) and the exclusive
representative for state BU 8.	representative for state BU 8.
Section 3513(h) of the Dills Act grants the Board the power to determine appropriate	Section 3 513(h) of the Dills Act grants the Board the power to determine appropriate
bargaining units for State employees. Section 3 521 sets forth the criteria for such unit	bargaining units for State employees. Section 3521 sets forth the criteria for such unit
determinations. Pursuant to this power, the Board, in 1978, initiated a series of hearings to	determinations. Pursuant to this power, the Board, in 1978, initiated a series of hearings to
determine the bargaining units for State employees. (State Unit Determination.) Over 27,000	determine the bargaining units for State employees. (State Unit Determination.) Over 27,000
pages of testimony was elicited from various parties during these hearings. (Ibid.) Based on	pages of testimony was elicited from various parties during these hearings. (Ibid.) Based on
these hearings, the Board established 20 bargaining units for State employees. One such unit	these hearings, the Board established 20 bargaining units for State employees. One such unit
was BU 8, the firefighters unit. (Ibid.)	was BU 8, the firefighters unit. (Ibid.)

A.	A. 	Union Security Provisions	Union Security Provisions
The Dills Act grants a union that has been recognized as an exclusive representative for	The Dills Act grants a union that has been recognized as an exclusive representative for
a State bargaining unit to negotiate with the State for union security provisions in the form of	a State bargaining unit to negotiate with the State for union security provisions in the form of
fair share fees or maintenance of membership. Relevant to this discussion, the 2001-2008	fair share fees or maintenance of membership. Relevant to this discussion, the 2001-2008
memorandum of understanding (MOU) between the parties states,	memorandum of understanding (MOU) between the parties states, 2
3.2	3 .2 Fair Share	Fair Share
3.2.1	3 .2.1 . . . the State Employer agrees to deduct and transmit to	... the State Employer agrees to deduct and transmit to
CDF FIREFIGHTERS all deductions authorized on a form	CDF FIREFIGHTERS all deductions authorized on a form
provided by CDF FIREFIGHTERS and, pursuant to Government	provided by CDF FIREFIGHTERS and, pursuant to Government
Code Section 3513.7, to deduct and transmit to CDF	Code Section 3513.7, to deduct and transmit to CDF
FIREFIGHTERS all Fair Share fees from State employees in	FIREFIGHTERS all Fair Share fees from State employees in
Unit 8 who do not elect to become members of CDF	Unit 8 who do not elect to become members of CDF
FIREFIGHTERS. Such authorized dues deductions and Fair	FIREFIGHTERS. Such authorized dues deductions and Fair
Share fees shall be remitted monthly to CDF FIREFIGHTERS	Share fees shall be remitted monthly to CDF FIREFIGHTERS
along with an adequate itemized record of deductions. CDF	along with an adequate itemized record of deductions. CDF
FIREFIGHTERS shall pay any reasonable costs incurred by the	FIREFIGHTERS shall pay any reasonable costs incurred by the
State Controller. The State employer shall not be liable in any	State Controller. The State employer shall not be liable in any
action brought by a State employee seeking recovery of, or	action brought by a State employee seeking recovery of, or
damages for improper use or calculation of Fair Share fees and	damages for improper use or calculation of Fair Share fees and
CDF FIREFIGHTERS agrees to hold the State employer	CDF FIREFIGHTERS agrees to hold the State employer
harmless for any such action.	harmless for any such action.
B.	B. 	Retired Annuitants	Retired Annuitants
Danielle Kelsch has been the membership coordinator for CDFF since June 2008. She	Danielle Kelsch has been the membership coordinator for CDFF since June 2008. She
receives a monthly list from the State Controller's Office (SCO) of employees in BU 8 that are	receives a monthly list from the State Controller's Office (SCO) of employees in BU 8 that are
paying dues or fair share fees. 	The list, however, does not provide information on people whopaying dues or fair share fees. The list, however, does not provide information on people who
are not paying dues or a fair share fee. 	Prior to this controversy, she was unaware that fair	are not paying dues or a fair share fee. Prior to this controversy, she was unaware that fair
share fees for retired annuitants were not being deducted from their paychecks.	share fees for retired annuitants were not being deducted from their paychecks.
Larry Menth (Menth) has been the Cal Fire assistant deputy director of labor and	Larry Menth (Menth) has been the Cal Fire assistant deputy director of labor and
human resources for two and a half years. Menth testified that although retired annuitants	human resources for two and a half years. Menth testified that although retired annuitants
3
2
Although the MOU between the parties expired on June 30, 2008, it continues in	Although the MOU between the parties expired on June 30, 2008, it continues in
effect unless changed through negotiations or the implementation of the employer's "last, best,	effect unless changed through negotiations or the implementation of the employer's "last, best,
and final offer" after impasse is reached in negotiations. (Dills Act $ 3517.8.)	and final offer" after impasse is reached in negotiations. (Dills Act § 3 517. 8.)
3

4
perform the work of BU 8 employees, he believes they are not represented by CDFF. He noted	perform the work of BU 8 employees, he believes they are not represented by CDFF. He noted
that	that the MOU between the parties provides compensatory time off, vacation accrual, sick leave	the MOU between the parties provides compensatory time off, vacation accrual, sick leave
and other benefits for permanent and seasonal employees that are not available to retired	and other benefits for permanent and seasonal employees that are not available to retired
annuitants. During his four years at Cal Fire, Menth could not recall a prior CDFF request to	annuitants. 	During his four years at Cal Fire, Menth could not recall a prior CDFF request to
bargain over retired annuitants.	bargain over retired annuitants.
Ken Hale (Hale) has served as a firefighter with Cal Fire for 30 years. In 2006, Hale	Ken Hale (Hale) has served as a firefighter with Cal Fire for 30 years. In 2006, Hale
was promoted to battalion chief. Hale also serves as the rank-and-file director for CDFF. In	was promoted to battalion chief. Hale also serves as the rank-and-file director for CDFF. 	In
that capacity, Hale is the lead negotiator on the bargaining team and the union's representative	that capacity, Hale is the lead negotiator on the bargaining team and the union's representative
at the third level of the MOU grievance procedure.	at the third level of the MOU grievance procedure.
Hale testified that retired annuitants perform the same duties as permanent employee	Hale testified that retired annuitants perform the same duties as permanent employee
bargaining unit members, and generally work the same schedule. Their pay is based on the	bargaining unit members, and generally work the same schedule. Their pay is based on the
salary of the bargaining unit positions they fill. Until learning otherwise in Fall 2008, Hale	salary of the bargaining unit positions they fill. Until learning otherwise in Fall 2008, Hale
believed that non-CDFF member retired annuitants were paying fair share fees. 	The union's	believed that non-CDFF member retired annuitants were paying fair share fees. The union's
accounting system does not provide notice that the fees are missing.	accounting system does not provide notice that the fees are missing.
Dana Manning (Manning) is a labor relations manager II with the Department of	Dana Manning (Manning) is a labor relations manager II with the Department of
Personnel Administration (DPA) assigned to BU 8. On November 20, 2008, he provided a list	Personnel Administration (DPA) assigned to BU 8. On November 20, 2008, he provided a list
of retired annuitants to CDFF, stating, "the number of retired annuitants who have been	of retired annuitants to CDFF, stating, "the number of retired annuitants who have been
performing temporary work in Bargaining Unit 8 [over the last 24 months] is one hundred and	performing temporary work in Bargaining Unit 8 [over the last 24 months] is one hundred and
twenty-one (121)." Manning testified that he did not consider retired annuitants as members of	twenty-one (121)." Manning testified that he did not consider retired annuitants as members of
bargaining unit 8.	bargaining unit 8.
4
C. 	Administrative Treatment of Retired Annuitants	Administrative Treatment of Retired Annuitants
Henry Epling (Epling) retired as a fire captain in 2004 after 30 years at Cal Fire.	Henry Epling (Epling) retired as a fire captain in 2004 after 30 years at Cal Fire.
During the 20 years prior to his retirement, Epling served CDFF in various leadership and	During the 20 years prior to his retirement, Epling served CDFF in various leadership and
employee representation capacities. He is currently the CDFF deputy district vice president for	employee representation capacities. He is currently the CDFF deputy district vice president for

5
the North Coast. Since retiring, Epling worked as a retired annuitant in adjunct instructor,	the North Coast. Since retiring, Epling worked as a retired annuitant in adjunct instructor,
investigator, and relief fire captain positions. He performed the same duties as permanent	investigator, and relief fire captain positions. He performed the same duties as permanent
employees and at times had a different work schedule.	employees and at times had a different work schedule.
On May 18, 2007, Epling was issued a Notice of Personnel Action, Report of	On May 18, 2007, Epling was issued a Notice of Personnel Action, Report of
Appointment (NOPA), from the Cal Fire personnel services division as a retired annuitant fire	Appointment (NOPA), from the Cal Fire personnel services division as a retired annuitant fire
captain. In relevant part, the document states, "[fjor collective bargaining purposes, you have	captain. In relevant part, the document states, "[fjor collective bargaining purposes, you have
been designated as rank and file in bargaining unit 8." He was issued similar personnel notices	been designated as rank and file in bargaining unit 8." He was issued similar personnel notices
on May 30 and July 3, 2007.	on May 30 and July 3, 2007.
Arle	Arle Simon (Simon) is a staff services manager at SCO, and has worked on state	Simon (Simon) is a staff services manager at SCO, and has worked on state
employee union dues and fair share deductions for 28 years. The SCO withholds fair share	employee union dues and fair share deductions for 28 years. The SCO withholds fair share
fees from the paychecks of those bargaining unit employees represented by a union who do not	fees from the paychecks of those bargaining unit employees represented by a union who do not
wish to become dues-paying members. 	Simon testified that the SCO does not determine which	wish to become dues-paying members. Simon testified that the SCO does not determine which
employees are in a bargaining unit.	employees are in a bargaining unit.
According	According to Simon, the SCO built a system in 1994 that automated the deduction of	to Simon, the SCO built a system in 1994 that automated the deduction of
fair share fees. The automated system, however, did not incorporate retired annuitants. As a	fair share fees. 	The automated system, however, did not incorporate retired annuitants. 	As a
result of these changes, notwithstanding the bargaining unit designation on a retired annuitant's	result of these changes, notwithstanding the bargaining unit designation on a retired annuitant's
NOPA, the SCO does not automatically collect dues and/or fair share fees for retired	NOPA, the SCO does not automatically collect dues and/or fair share fees for retired
annuitants. 	Instead, the exclusive representatives for each respective unit is first required to	annuitants. Instead, the exclusive representatives for each respective unit is first required to
file a CD-88 form and request the collection of fees from retired annuitants.	file a CD-88 form and request the collection of fees from retired annuitants.
Simon testified that the SCO informed all the State's exclusive representatives in 1994	Simon testified that the SCO informed all the State's exclusive representatives in 1994
that it would not collect fair share fees from retired annuitants unless they submitted a	that it would not collect fair share fees from retired annuitants unless they submitted a
completed form. Some exclusive representatives, like the exclusive representative for	completed form. 	Some exclusive representatives, like the exclusive representative for
bargaining unit 7, submitted such a form and now receive either dues or fair share fees from	bargaining unit 7, submitted such a form and now receive either dues or fair share fees from
retired annuitants performing work associated with their respective bargaining units. To date,	retired annuitants performing work associated with their respective bargaining units. To date,
5

however, CDFF has neither submitted an CD-88 form nor requested the SCO to collect fair	however, CDFF has neither submitted an CD-88 form nor requested the SCO to collect fair
share fees from retired annuitants.	share fees from retired annuitants.
D.	D. 	Menth's Salary and Overtime Memorandum	Menth's Salary and Overtime Memorandum
In May 2008, Menth issued a memorandum to Cal Fire region chiefs and deputy	In May 2008, Menth issued a memorandum to Cal Fire region chiefs and deputy
directors regarding salary and overtime for retired annuitants. Although he was not positive	directors regarding salary and overtime for retired annuitants. Although he was not positive
that a copy of the memorandum was sent to CDFF, Menth testified that was his usual practice.	that a copy of the memorandum was sent to CDFF, Menth testified that was his usual practice.
In September 2008, Epling discovered what he considered a discrepancy in his	In September 2008, Epling discovered what he considered a discrepancy in his
paycheck. 	While researching the issue on the Cal Fire website, Epling saw the memo from	paycheck. While researching the issue on the Cal Fire website, Epling saw the memo from
Menth to Cal Fire managers regarding salary and overtime for retired annuitants. Epling	Menth to Cal Fire managers regarding salary and overtime for retired annuitants. Epling
printed a copy of the memo and gave it to Hale.printed a copy of the memo and gave it to Hale.
Hale received a copy of Menth's memo to managers regarding salary and overtime for	Hale received a copy of Menth's memo to managers regarding salary and overtime for
retired annuitants in September 2008. He did not recall receiving a copy from Menth earlier.	retired annuitants in September 2008. He did not recall receiving a copy from Menth earlier.
E.	E. 	CDFF's Grievance Regarding Retired Annuitants	CDFF's Grievance Regarding Retired Annuitants
In September 2008, Menth was contacted by CDFF's attorney, Gary Messing	In September 2008, Menth was contacted by CDFF's attorney, Gary Messing
(Messing). 	Messing told him there were items in the memo that CDFF wished to negotiate,	(Messing). Messing told him there were items in the memo that CDFF wished to negotiate,
and asked whether fair share fees were being deducted from retired annuitants. Menth denied	and asked whether fair share fees were being deducted from retired annuitants. Menth denied
the request to bargain and was unsure whether retired annuitants were paying fair share fees.	the request to bargain and was unsure whether retired annuitants were paying fair share fees.
On October 6, 2008, Messing sent Menth a letter grieving the denial of negotiations and	On October 6, 2008, Messing sent Menth a letter grieving the denial of negotiations and
again asked if retired annuitants were paying fair share fees. 	Menth responded that the letter	again asked if retired annuitants were paying fair share fees. Menth responded that the letter
did not state a grievance. 	Messing asked Menth to resolve the matter by collecting fair share	did not state a grievance. Messing asked Menth to resolve the matter by collecting fair share
fees from retired annuitants. Menth responded that the issue would be decided by DPA.	fees from retired annuitants. Menth responded that the issue would be decided by DP A.
DISCUSSION	DISCUSSION
The threshold issue in this case is whether retired annuitants performing work as	The threshold issue in this case is whether retired annuitants performing work as
firefighters are in BU 8 by operation of the 1979 State Unit Determination case. In that case,	firefighters are in BU 8 by operation of the 1979 State Unit Determination case. In that case,
66

the Board determined that all state employees working as firefighters would be in a single
bargaining unit. (State Unit Determination. ) Consequently, CDFF argues that since the retired
annuitants are performing bargaining unit work, CDFF should be entitled to collect fair share
fees from the annuitants. The State, on the other hand, argues that retired annuitants were not
included in BU 8 pursuant to State Unit Determination and, therefore, the State did not have a
duty to collect fair share fees on behalf of CDFF.
In State Unit Determination, the Board established 20 bargaining units for State
employees. In determining the appropriate bargaining units for the State's workforce, the
Board conducted extensive hearings and developed a record in excess of 27,000 pages. Using
facts from this record, the Board applied the unit determination criteria set forth in Dills Act
section 3521. According to the Board:
We have sought to place employees with an internal and
occupational community of interest in appropriate units; we have
considered the effect such units will have on the meet and confer
relationships and on the efficient operations of the employer; we
have weighed the effect of a particular configuration of
employees on the operations of the employer, on the objective of
providing the employees the right to effective representation, and
on the meet and confer relationship itself; and we have paid
particular attention to the impact on the meet and confer
relationship created by the fragmentation of employees and the
proliferation of units.
Based on this review, the Board concluded, among other things, that State employees
working as firefighters would be in a single unit, BU 8.
7
the Board determined that all state employees working as firefighters would be in a single
bargaining unit. (State Unit Determination.) Consequently, CDFF argues that since the retired
annuitants are performing bargaining unit work, CDFF should be entitled to collect fair share
fees from the annuitants. The State, on the other hand, argues that retired annuitants were not
included in BU 8 pursuant to State Unit Determination and, therefore, the State did not have a
duty to collect fair share fees on behalf of CDFF.
In State Unit Determination, the Board established 20 bargaining units for State
employees. 	In determining the appropriate bargaining units for the State's workforce, the
Board conducted extensive hearings and developed a record in excess of 27,000 pages. Using
facts from this record, the Board applied the unit determination criteria set forth in Dills Act
section 3 521. According to the Board:
We have sought to place employees with an internal and
occupational community of interest in appropriate units; we have
considered the effect such units will have on the meet and confer
relationships and on the efficient operations of the employer; we
have weighed the effect of a particular configuration of
employees on the operations of the employer, on the objective of
providing the employees the right to effective representation, and
on the meet and confer relationship itself; and we have paid
particular attention to the impact on the meet and confer
relationship created by the fragmentation of employees and the
proliferation of units.
Based on this review, the Board concluded, among other things, that State employees
working as firefighters would be in a single unit, BU 8.
7
The Board recently addressed the issue of the unit placement of retired annuitants in	The Board recently addressed the issue of the unit placement of retired annuitants in
State of California (Department of Corrections & Rehabilitation) (2010) PERB Decision	State a/California (Department o,/Corrections & Rehabilitation) (2010) PERB Decision
No. 2154-S (Corrections). In that case, the Board ruled that retired annuitants performing	21 54-S (Corrections). 	In that case, the Board ruled that retired annuitants performing
work as correctional officers were not automatically in bargaining unit 6 (BU 6) by operation	work as correctional officers were not automatically in bargaining unit 6 (BU 6) by operation
of the Board's initial unit determination in	of the Board's initial unit determination in State Unit Determination. Accordingly, the Board	State Unit Determination. Accordingly, the Board

This [factor] is significant because retired annuitants do not enjoy
the same benefits or rights as those held by full-time employees.
For example, retired annuitants are at-will employees who may
only work 960 hours per fiscal year. They do not accrue vacation
or sick leave. They are hired to perform a specific job on a
temporary basis and are not eligible to either promote or laterally
transfer. Moreover, the use of retired annuitants limits hiring,
promotions and overtime for full-time employees. Consequently,
the use of retired annuitants potentially poses a direct conflict
with the interests of full-time employees. In light of the
substantial distinctions between retired annuitants and full-time
employees, we find that an analysis of the unit determination
criteria set forth in Dills Act section 3521 regarding these
distinctions is a necessary prerequisite to the inclusion of retired
annuitants in BU 6. Accordingly, since such an analysis was not
performed by the Board, we find retired annuitants were not
included in BU 6 by operation of the State Unit Determination
case.
In this case, the retired annuitants performing work associated with BU 8 possess these
same distinctions with full-time and seasonal employees working in BU 8. In particular,
unlike the full-time and seasonal employees working in BU 8, the instant retired annuitants do
not accrue vacation, annual leave, sick leave or compensatory time off. Moreover, they do not
receive healthcare insurance, accrue retirement benefits, or receive promotional opportunities.
Consistent with the Corrections case, in light of the substantial distinctions between
retired annuitants and full-time and seasonal employees working in BU 8, we find that an
analysis of the unit determination criteria set forth in Dills Act section 3521 regarding these
distinctions is a necessary prerequisite to the inclusion of retired annuitants in BU 8. Since
88
ruled that the State did not have a duty to collect fair share fees from retired annuitants	ruled that the State did not have a duty to collect fair share fees from retired annuitants
performing work as correctional officers.performing work as correctional officers.
A.	A. 	The Corrections Case	The Corrections Case
In reaching its decision, the Board in Corrections found noteworthy the fact that retired	In reaching its decision, the Board in Corrections found noteworthy the fact that retired
annuitants, as a class of employees, were not considered by the Board when it formulated its	annuitants, as a class of employees, were not considered by the Board when it formulated its
decision. According to the Board:	decision. According to the Board:
This [factor] is significant because retired annuitants do not enjoy
the same benefits or rights as those held by full-time employees.
For example, retired annuitants are at-will employees who may
only work 960 hours per fiscal year. They do not accrue vacation
or sick leave. They are hired to perform a specific job on a
temporary basis and are not eligible to either promote or laterally
transfer. Moreover, the use of retired annuitants limits hiring,
promotions and overtime for full-time employees. Consequently,
the use of retired annuitants potentially poses a direct conflict
with the interests of full-time employees. In light of the
substantial distinctions between retired annuitants and full-time
employees, we find that an analysis of the unit determination
criteria set forth in Dills Act section 3521 regarding these
distinctions is a necessary prerequisite to the inclusion of retired
annuitants in BU 6. Accordingly, since such an analysis was not
performed by the Board, we find retired annuitants were not
included in BU 6 by operation of the State Unit Determination
case.
In this case, the retired annuitants performing work associated with BU 8 possess these
same distinctions with full-time and seasonal employees working in BU 8. In particular,
unlike the full-time and seasonal employees working in BU 8, the instant retired annuitants do
not accrue vacation, annual leave, sick leave or compensatory time off. Moreover, they do not
receive healthcare insurance, accrue retirement benefits, or receive promotional opportunities.
Consistent with the Corrections case, in light of the substantial distinctions between
retired annuitants and full-time and seasonal employees working in BU 8, we find that an
analysis of the unit determination criteria set forth in Dills Act section 3521 regarding these
distinctions is a necessary prerequisite to the inclusion ofretired annuitants in BU 8. 	Since

such an analysis was not performed by the Board, we find retired annuitants were not included
in BU 8 by operation of the State Unit Determination case.
B. 	Retired Annuitants Are Not Automatically Placed In Bargaining Units
9
such an analysis was not performed by the Board, we find retired annuitants were not included
in BU 8 by operation
of
the State Unit Determination case.
B. 	Retired Annuitants Are Not Automatically Placed In Bargaining Units
In the Corrections case, the Board clarified that its decisions in Unit Determination for	In the Corrections case, the Board clarified that its decisions in Unit Determination.for
Technical,	Technical, Skilled Crafts, Service and Professional Employees of the University of California	Skilled Crafts, Service and Professional Employees
of
the University
of
California
(Lawrence Livermore National Laboratory Casual Employees) (1983) PERB Decision(Lawrence Livermore National Laboratory Casual Employees) (1983) PERB Decision
No. 290-H (Lawrence Livermore[) and Unit Determination for Technical, Skilled Crafts,	No. 290-H (Lawrence Livermore I) and Unit Determination for Technical, Skilled Crafts,
5'ervice and Professional Employees
of
the University
of
California (Lawrence LivermoreService and Professional Employees of the University of California (Lawrence Livermore
National Laboratory Casual Employees) (1983) PERB Decision No. 290a-H (LawrenceNational Laboratory Casual Employees) (1983) PERB Decision No. 290a-H (Lawrence
Livennore
11)
stand for the proposition that retired annuitants are not automatically placed in	Livermore II) stand for the proposition that retired annuitants are not automatically placed in
units containing full-time employees performing similar tasks. Rather, retired annuitants will	units containing full-time employees performing similar tasks. Rather, retired annuitants will
be placed in such units
if
they are included in a unit determination or modification petition and	be placed in such units if they are included in a unit determination or modification petition and
if, following a full unit hearing, the Board determines they are appropriately placed in that unit.	if, following a full unit hearing, the Board determines they are appropriately placed in that unit.
Here, there is nothing in the record to suggest that the initial unit petitions for	Here, there is nothing in the record to suggest that the initial unit petitions for
correctional officers sought to include retired annuitant into BU
8.
	Ironically, in addition tocorrectional officers sought to include retired annuitant into BU 8. Ironically, in addition to
full-time employees, the Board in State Unit Determination did, in fact, consider the placement	full-time employees, the Board in State Unit Determination did, in fact, consider the placement
of
another class
of
employees in BU 8; namely, seasonal firefighters. 	Based on its analysis, theof another class of employees in BU 8; namely, seasonal firefighters. Based on its analysis, the
Board concluded that seasonal firefighters were appropriately placed in BU 8. In this case,	Board concluded that seasonal firefighters were appropriately placed in BU 8. In this case,
however, the Board did not conduct an analysis regarding the appropriate placement
of
retired	however, the Board did not conduct an analysis regarding the appropriate placement of retired
annuitants or, alternatively, any analysis
of
the employment distinctions unique to retired	annuitants or, alternatively, any analysis of the employment distinctions unique to retired
annuitants. Accordingly, consistent with Lawrence Livermore I, we find retired annuitants in	annuitants. Accordingly, consistent with Lawrence Livermore I, we find retired annuitants in
this case were not automatically placed in BU 8 by operation of the State Unit Determination	this case were not automatically placed in BU 8 by operation of the State Unit Determination
case. Therefore, the State did not breach its duty to collect agency fees on behalf of CDFF for	case. Therefore, the State did not breach its duty to collect agency fees on behalf of CDFF for
retired annuitants performing work as firefighters.	retired annuitants performing work as firefighters.
9

C.	C. 	A Petition For Unit Modification Is Necessary To Determine The Appropriate	A Petition For Unit Modification Is Necessary To Determine The Appropriate
Unit Placement For The Retired Annuitants	Unit Placement For The Retired Annuitants
The Board has held that parties may not utilize the unfair practice procedure to
circumvent the unit modification process. (Berkeley Unified School District (2005) PERB
Decision No. 1744 (Berkeley).) Here, the instant charge seeks the addition of retired
annuitants to BU 8 without reference to the unit modification process. Therefore, pursuant to
Berkeley, CDFF's charge is invalid and is properly dismissed.
In reaching this decision, we do not express an opinion regarding the appropriate unit
placement for retired annuitants. That determination is properly made pursuant to the unit
modification process. (Berkeley.) Consequently, if CDFF desires the inclusion of retired
annuitants in BU 8, they must file a petition for unit modification in accordance with PERB
Regulation 32781.'
The dissent argues that since the Board in Lawrence Livermore II determined that
retired annuitants were properly included in units containing full-time employees performing
similar tasks, retired annuitants working in the classifications included in BU 8 are properly
placed in BU 8. For the reasons set forth below, we respectfully disagree.
retired annuitants from the unit determination petition. Based on this statement, the Board
reversed its determination that retired annuitants were not included in the unit determination
petition and applied its prior analysis regarding the appropriate unit placement of retired
annuitants. (Lawrence Livermore II.)
10	10
The Board has held that parties may not utilize the unfair practice procedure to
circumvent the unit modification process. (Berkeley Unified School District (2005) PERB
Decision No. 1744 (Berkeley).) Here, the instant charge seeks the addition of retired
annuitants to BU 8 without reference to the unit modification process. Therefore, pursuant to
Berkeley, CDFF's charge is invalid and is properly dismissed.
In reaching this decision, we do not express an opinion regarding the appropriate unit
placement for retired annuitants. That determination is properly made pursuant to the unit
modification process. (Berkeley.) Consequently, if CDFF desires the inclusion of retired
annuitants in BU 8, they must file a petition for unit modification in accordance with PERB
Regulation 32781.3
The dissent argues that since the Board in Lawrence Livermore II determined that
retired annuitants were properly included in units containing full-time employees performing
similar tasks, retired annuitants working in the classifications included in BU 8 are properly
placed in BU 8. For the reasons set forth below, we respectfully disagree.
In Lawrence Livermore II, the University of California sought reconsideration of the	In Lawrence Livermore II, the University of California sought reconsideration of the
U,wrence Livermore I decision on the basis that it did not agree to the constructive deletion of	Lawrence Livermore I decision on the basis that it did not agree to the constructive deletion of
retired annuitants from the unit determination petition. Based on this statement, the Board
reversed its determination that retired annuitants were not included in the unit determination
petition and applied its prior analysis regarding the appropriate unit placement of retired
annuitants. 	(Lawrence Livermore II.)
3
'PERB regulations are codified at California Code of Regulations, title 8,	PERB regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.	section 3100 I et seq.

In reaching its decision, the Board did not reverse the portion of Lawrence Livermore I
that concluded retired annuitants were not in the bargaining unit because they were not
included in the initial unit determination petition. Instead, the Board merely applied its prior
analysis regarding the appropriate unit placement of retired annuitants. Consequently,
Lawrence Livermore I and II continue to stand for the proposition that retired annuitants are
not automatically placed in units containing full-time employees performing similar tasks.
With regard to the Board's analysis in Lawrence Livermore II, the Board held:
The single difference that all of the retirees receive
pension and/or social security benefits, so that their work
eligibility is limited to 90 days of employment in any one
year at the risk of losing retirement benefits, is not
sufficient to distinguish the two types of indeterminate-
time employees and exclude the retirees from the unit.
We find the Board's cursory analysis in Lawrence Livermore II is not dispositive in this
case. In addition, we find further analysis pursuant to a petition for unit modification is
necessary in order to determine the appropriate placement for the retired annuitants.
D. 	CDFF's Failure To Submit A CD-88 Form To The SCO
Even if the Board was to find that retired annuitants are members of BU 8 by virtue of
the State Unit Determination decision, we would nonetheless conclude that Cal Fire's failure
to deduct fair share fees from retired annuitants in BU 8 did not violate the Dills Act. A
unilateral change in terms and conditions of employment constitutes a "per se" violation of
Dills Act section 3519(c)"
11
In reaching its decision, the Board did not reverse the portion
of
Lawrence Livermore I
that concluded retired annuitants were not in the bargaining unit because they were not
included in the initial unit determination petition. Instead, the Board merely applied its prior
analysis regarding the appropriate unit placement
of
retired annuitants. Consequently,
Lawrence Livermore I and
II
continue to stand for the proposition that retired annuitants are
not automatically placed in units containing full-time employees performing similar tasks.
With regard to the Board's analysis in Lawrence Livermore II, the Board held:
The single difference that all
of
the retirees receive
pension and/or social security benefits, so that their work
eligibility is limited to 90 days
of
employment in any one
year at the risk
of
losing retirement benefits, is not
sufficient to distinguish the two types
of
indeterminate-
time employees and exclude the retirees from the unit.
We find the Board's cursory analysis in Lawrence Livermore
II
is not dispositive in this
case. 	In addition, we find further analysis pursuant to a petition for unit modification is
necessary in order to determine the appropriate placement for the retired annuitants.
D. 	CDFF's Failure To Submit A CD-88 Form To The SCO
Even
if
the Board was to find that retired annuitants are members
of
BU 8 by virtue
of
the State Unit Determination decision, we would nonetheless conclude that Cal Fire's failure
to deduct fair share fees from retired annuitants in BU 8 did not violate the Dills Act. 	A
unilateral change in terms and conditions
of
employment constitutes a "per se" violation
of
Di !ls Act section 3 519( c
4
if: ( 1) the State breached or altered the parties' written agreement or	if: (1) the State breached or altered the parties' written agreement or
its own established past practice; (2) such action was taken without giving the other party notice	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 o
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	the contract, but amounts to a change in policy (i.e., it has a generalized effect or continuing
)
f
4
Dills Act section 3519(c) makes it unlawful for the State to "[refuse or fail to meet	Dills Act section 3519(c) makes it unlawful for the State to "[r]efuse or fail to meet
and confer in good faith with a recognized employee organization."	and confer in good faith with a recognized employee organization."
11

impact upon bargaining unit members' terms and conditions of employment); and (4) the change
in policy concerns a matter within the scope of representation. (State of California (Department
of Personnel Administration) (1998) PERB Decision No. 1296-S; Grant Joint Union High
School District (1982) PERB Decision No. 196.)
As explained by the Board in the Corrections case, the SCO does not automatically
deduct fair share fees from the paychecks of retired annuitants." Instead, since 1994, a union
has been required to submit a CD-88 form to the SCO in order for fair share fees to be
collected from retired annuitants. In the instant case, it is undisputed that CDFF has never
submitted a CD-88 form. Because CDFF failed to follow this procedure, neither Cal Fire nor
SCO has ever been obligated to deduct fair share fees from retired annuitants in BU 8.
Accordingly, the State's failure to deduct the fees was not a violation of the Dills Act.
CONCLUSION
The Board finds retired annuitants were never included in BU 8 and, therefore, were not
unlawfully removed from BU 8 by Cal Fire. In addition, since retired annuitants are not in
BU 8
It
12	12
impact upon bargaining unit members' terms and conditions of employment); and (4) the change
in policy concerns a matter within the scope of representation. (State of California (Department
of Personnel Administration) (1998) PERB Decision No. 1296-S; Grant Joint Union High
School District (1982) PERB Decision No. 196.)
As explained by the Board in the Corrections case, the SCO does not automatically
deduct fair share fees from the paychecks ofretired annuitants. 5 Instead, since 1994, a union
has been required to submit a CD-88 form to the SCO in order for fair share fees to be
collected from retired annuitants. In the instant case, it is undisputed that CDFF has never
submitted a CD-88 form. 	Because CDFF failed to follow this procedure, neither Cal Fire nor
SCO has ever been obligated to deduct fair share fees from retired annuitants in BU 8.
Accordingly, the State's failure to deduct the fees was not a violation of the Dills Act.
CONCLUSION
The Board finds retired annuitants were never included in BU 8 and, therefore, were not
unlawfully removed from BU 8 by Cal Fire. In addition, since retired annuitants are not in
BU 8, the Board finds the State did not breach its duty to collect agency fees on behalf of	. the Board finds the State did not breach its duty to collect agency fees on behalf of
CD FF from retired annuitants performing work as firefighters. However, even if retired	CDFF from retired annuitants performing work as firefighters. However, even if retired
annuitants are in BU 8 by virtue of the State Unit Determination case, since CDFF failed to	annuitants are in BU 8 by virtue of the State Unit Determination case, since CDFF failed to
request the collection of fees by the SCO, there was no breach of the duty to bargain because	request the collection of fees by the SCO, there was no breach of the duty to bargain because
the State was never obligated to collect fair share fees from retired annuitants in BU 8.	the State was never obligated to collect fair share fees from retired annuitants in BU 8.
5
is the SCO, not Cal Fire, that deducts fair share fees and remits them to the	It is the SCO, not Cal Fire, that deducts fair share fees and remits them to the
appropriate union.	appropriate union.

ORDER
The complaint and underlying unfair practice charge in Case No. SA-CE-1735-S are
hereby DISMISSED.
Chair Dowdin Calvillo joined in this Decision.
Member Wesley's concurrence and dissent begins on page 14.
13
ORDER
The complaint and underlying unfair practice charge in Case No. SA-CE-1735-S are
hereby DISMISSED.
Chair Dowdin Calvillo joined in this Decision.
Member Wesley's concurrence and dissent begins on page 14.

WESLEY, Member, dissenting and concurring. I respectfully dissent from the
majority's determination that retired annuitants are not included in State Bargaining Unit 8
(BU 8).
As I concluded in my dissent in State of California (Department of Corrections &
Rehabilitation) (2010) PERB Decision No. 2154-S, I find that the Public Employment
Relations Board (PERB or Board) has long held that employees in less than permanent, full-
time positions, such as retired annuitant employees, are included in State bargaining units.
managerial, confidential, or supervisory." (Emphasis in original; fn. omitted.) Since that
decision, the Board has affirmed that less than permanent, full-time positions are in the State
bargaining units. (State of California (Department of Personnel Administration) (1985) PERB
Decision No. 532-S [permanent-intermittent and temporary-intermittent employees]; State of
California (Department of Personnel Administration) (1990) PERB Decision No. 787-S
[seasonal lifeguards]; State of California, Department of Personnel Administration (1991)
PERB Decision No. 871-S [seasonal and limited term cooks]; Unit Determination for
Technical, Skilled Crafts, Service and Professional Employees of the University of California
(Lawrence Livermore National Laboratory Casual Employees) (1983) PERB Decision
14
WESLEY, Member, dissenting and concurring. I respectfully dissent from the
majority's determination that retired annuitants are not included in State Bargaining Unit 8
(BU 8).
As I concluded in my dissent in State
of
California (Department
of
Corrections &
Rehabilitation) (2010) PERB Decision No. 2154-S, I find that the Public Employment
Relations Board (PERB or Board) has long held that employees in less than permanent, full-
time positions, such as retired annuitant employees, are included in State bargaining units.
In	In Unit Determination for the State of California (1979) PERB Decision No. 110-S, the	Unit Determination for the State
of
California (1979) PERB Decision No. 110-S, the
Board applied the criteria set forth in Dills	Board applied the criteria set forth in Dills Act section 3521 to initially establish 20 State	Act section 3 521 to initially establish 20 State
bargaining units comprised
of
appropriate job	bargaining units comprised of appropriate job classifications. In Unit Determination for the	classifications. In Unit Determination
for
the
State of California (1980) PERB Decision No. 110c-S, the Board found that "the essence of	State
of
California (1980) PERB Decision No.
11
0c-S, the Board found that "the essence
of
[the statute] is to extend SEERA" rights to all State employees except those proven to be	[the statute] is to extend SEERA[JJ rights to all State employees except those proven to be
managerial, confidential, or supervisory." (Emphasis in original; fn. omitted.) Since that
decision, the Board has affirmed that less than permanent, full-time positions are in the State
bargaining units. (State
of
California (Department
of
Personnel Administration) (1985) PERB
Decision No. 532-S [permanent-intermittent and temporary-intermittent employees]; State
of
California (Department
of
Personnel Administration) (1990) PERB Decision No. 787-S
[seasonal lifeguards]; State
of
California, Department
of
Personnel Administration (1991)
PERB Decision No. 871-S [seasonal and limited term cooks]; Unit Determination/or
Technical, Skilled Crafts, Service and Professional Employees
of
the University
of
California
(Lawrence Livermore National Laboratory Casual Employees) (1983) PERB Decision
14
SSEERA	EERA was later renamed the Ralph C. Dills Act.	was later renamed the Ralph C. Dills Act.

No. 290a-H [retired annuitants].) Accordingly, I find that the retired annuitants working in the
classifications included in BU 8 are in the bargaining unit.
I concur in the majority's determination, however, that because the California
Department of Forestry Firefighters failed to utilize the State Controller's procedure to initiate
the collection of fair share fees, the State of California (Department of Forestry and Fire
Protection) did not breach a duty to collect fair share fees from retired annuitants in BU 8.
15
No. 290a-H [retired annuitants].) Accordingly, I find that the retired annuitants working in the
classifications included in BU 8 are in the bargaining unit.
I concur in the majority's determination, however, that because the California
Department
of
Forestry Firefighters failed to utilize the State Controller's procedure to initiate
the collection
of
fair share fees, the State
of
California (Department
of
Forestry and Fire
Protection) did not breach a duty to collect fair share fees from retired annuitants in BU 8.
15