State of California (Department of Personnel Administration) (PERB 2017S)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

CALIFORNIA CORRECTIONAL PEACE
OFFICERS ASSOCIATION,

Charging Party, Case No. SA-CE-1621-S
Vv. PERB Decision No. 2017-S
STATE OF CALIFORNIA (DEPARTMENT OF April 1, 2009

PERSONNEL ADMINISTRATION),

Respondent.

Appearances: Carroll, Burdick & McDonough by Gregg McLean Adam, Attorney, for
California Correctional Peace Officers Association; Paul M. Starkey, Labor Relations Counsel,
for State of California (Department of Personnel Administration).
Before McKeag, Neuwald and Wesley, Members.
DECISION

WESLEY, Member: This case is before the Public Employment Relations Board
(PERB or Board) on appeal by the California Correctional Peace Officers Association
(CCPOA) of a Board agent’s partial dismissal (attached) of its unfair practice charge. The
charge alleged that the State of California (Department of Personnel Administration) (State or
DPA) violated the Ralph C. Dills Act (Dills Act)' by: (1) failing to provide necessary and
relevant information; (2) implementing a last, best, and final offer (LBFO) that “supersedes
and cancels” prior bargaining history, past practices, and “articulations, understandings,
interpretations and/or applications” of the parties' entire agreement article (Section 27.01 of the

expired memorandum of understanding), and by placing artificial barriers on future

negotiations; (3) implementing the State's LBFO with a three-year duration; (4) implementing

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

changes to Chapter President Release Day, the Release Time Bank, and Vice President's Leave
that were not reasonably comprehended in the State's LBFO; (5) interfering with CCPOA's
protected activity and discriminating against CCPOA in retaliation for prior protected activity;
and (6) implementing the LBFO without PERB making a determination of impasse. The
Board agent issued a complaint covering certain allegations and dismissed the remaining
allegations. 2
The Board has reviewed the entire record in this case, including but not limited to, the
original and amended unfair practice charge; CCPOA's injunctive relief requests, supporting
documents and the responses thereto; DP A's position statements; the Board agent's partial
warning and dismissal letters; CCPOA's appeal 	and DP A's response. Based on this review,
the Board finds the Board agent's partial warning and dismissal letters to be a correct statement
of the law and well reasoned, and therefore adopts them as the decision of the Board itself, as
supplemented by the discussion below.
3
4
DISCUSSION
The Board agrees with the Board agent's analysis and conclusions regarding the
timeliness and merits of the charge allegations on appeal based on the facts alleged in the
original and amended charge. Accordingly, we address only the new issues raised on appeal.
A complaint issued alleging the State breached its duty to bargain in good faith and
interfered with employee and union rights when it implemented a LBFO with a three-year
duration and failed to include Vice President's Leave in the implementation plan.
CCPOA did not appeal the dismissal of its allegations regarding the June and
August 2007 information requests, post-impasse surface bargaining, entire agreement
provision and failure to implement union leave. Therefore, the Board did not consider these
charge allegations. Further, CCPOA's request for oral argument is denied.
3
In Long Beach Community College District (2009) PERB Decision No. 2002, the
Board held that the statute of limitations is not an affirmative defense but an element of the
charging party's prima facie case. 	In light of this holding, the Board declines to adopt the
statement on page 7 of the attached warning letter that states, "The statute of limitations is an
affirmative defense which has been raised by the State in this case."
2
4

On appeal, CCPOA asserts that the statute of limitations should be equitably tolled
while the parties participated in mediation pursuant to Dills Act section 3518. The Board
recently addressed this argument in a case involving the same parties. For the reasons
discussed in State of California (Department of Personnel Administration) (2009) PERB
Decision No. 2013-S, the statute of limitations was not equitably tolled while the parties
engaged in mandatory mediation. Therefore, the Board agent correctly determined that certain
allegations were untimely filed.
Also on appeal, CCPOA presents new allegations in support of its claim that the State
retaliated against CCPOA's officers and members. 	CCPOA alleges on appeal that the State did
not offer justification for its refusal to implement union leave provisions and that the
elimination of these provisions deviated from established procedures and standards. These
allegations were not presented to the Board agent for consideration.
states, "Unless good cause is shown, a charging party may
not present on appeal new charge allegations or new supporting evidence." CCPOA makes no
attempt to demonstrate why good cause exists to consider these allegations on appeal. Thus,
these allegations were not considered.
PERB Regulation 32635(b)5
ORDER
The partial dismissal of the unfair practice charge in Case No. SA-CE-1621-S is hereby
AFFIRMED.
Members McKeag and Neuwald joined in this Decision.
PERB regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.
3
5

ARNOLD SCHWARZENEGGER, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Office
of
the General Counsel
1031 18th Street
Sacramento, CA 95811-4124
Telephone: (916) 327-8383
Fax: (916) 327-6377
December 7, 2007
Gregg McLean Adam, Attorney
Carroll, Burdick & McDonough
44 Montgomery Street, Suite 400
San Francisco, CA 94104
(
Re: 	California Correctional Peace Officers Association
v.
State
of
California (Department
of
Personnel Administration)
Unfair Practice Charge No. SA-CE-1621-S (Second Amended Charge)
PARTIAL DISMISSAL
Dear Mr. Adam:
The above-referenced unfair practice charge was filed on September 25, 2007, and amended on
October 2, 2007. The California Correctional Peace Officers Association (CCPOA) alleges
that the State
of
California (Department
of
Personnel Administration) (State or DPA) violated
the Ralph C. Dills Act (Dills Act) at: (1) section 3517 by failing to provide necessary and
relevant information requested by CCPOA in the course
of
the parties' negotiations, and by
engaging in bad faith, or surface, bargaining; (2) sections 3516, 3516.5, and 3517 by
implementing a last, best, and final offer (LBFO) that "supercedes and cancels" prior
bargaining history, past practices, and "articulations, understandings, interpretations and/or
applications"
of
the parties' entire agreement article (Section 27.01
of
the expired
memorandum
of
understanding (MOU)), and by placing artificial barriers on future
negotiations; (3) section 3517.8 by implementing the State's LBFO with a three-year duration;1
(4) sections 3517 and 3517
.8
by implementing changes to Chapter President Release Day, the
Release Time Bank, and State Vice-Presidents Leave that are not reasonably comprehended in
the State's LBFO; (5) sections 3515, 3515.5, and 3519 by interfering with CCPOA's protected
activity and discriminating against CCPOA in retaliation for prior protected activity; and (6)
section 3517.8 by implementing the LBFO without a determination
of
impasse being made by
PERB.
I informed you in the attached Partial Warning Letter dated October 22, 2007, that certain
allegations contained in the charge did not state a prima facie case. You were advised that,
if
there were any factual inaccuracies or additional facts that would correct the deficiencies
explained in that letter, you should amend the charge. You were further advised that, unless
you amended these allegations to state a prima facie case or withdrew them prior to October
31, 2007, the allegations would be dismissed.
The alleged violation based on implementation of a three-year diiration was not
addressed by the Partial Warning Letter. This allegation also is not addressed by this Partial
Dismissal Letter, and neither is the allegation that the State violated the Dills Act by failing to
include State Vice-Presidents Leave in its implementation plan.
1

Your subsequent requests for additional time in which to amend the charge were granted, and a
Second Amended Charge was filed on November 20, 2007. 	Except for those allegations
described in footnote one of this letter, each of the charge allegations will be addressed in the
order listed above.
2
Requests for Information
In the Partial Warning Letter, I concluded that the allegations with respect to pre-impasse
requests for information were time-barred, and that the allegations with respect to requests for
information made after a mediator was appointed failed to state a prima facie case. In the
Second Amended Charge, CCPOA argues the pre-impasse requests for information should be
considered timely under the continuing violations doctrine. However, as the Board held in
State of California (Department of Corrections) (2003) PERB Decision No. 1559-S
(Corrections), one of the cases relied upon by CCPOA, to find a continuing violation, "new
conduct independent of the original conduct must occur during the limitations period." (See,
also, State of California (Department of Consumer Affairs) (1994) PERB Decision No. 1066-S;
El Dorado Union High School District (1984) PERB Decision No. 382.) Here, as in
Corrections, the charge fails to establish that the State unlawfully refused to provide requested
information during the six-month period preceding the filing of the charge.
CCPOA also argues, with respect to the requests for information made during mediation, and
my observation in the Partial Warning Letter that it was not clear the questions submitted to
the mediator on June 25, 2007 were ever presented to the State, that CCPOA should have an
opportunity at hearing to present evidence demonstrating the questions were presented to and
not answered by the State. However, PERB Regulation 32615(a)(5) requires, inter alia, that an
unfair practice charge include a "clear and concise statement of the facts and conduct alleged
to constitute an unfair practice." The charging party's burden includes alleging the "who,
what, when, where and how" of an unfair practice. (State of California (Department of Food
and Agriculture) (1994) PERB Decision No. 1071-S, citing United Teachers-Los Angeles
(Ragsdale) (1992) PERB Decision No. 944.) Mere legal conclusions are not sufficient to state
a prima facie case. (Ibid.; Charter Oak Unified School District (1991) PERB Decision No.
873.)
For these reasons, as well as those set forth in the Partial Warning Letter, these allegations
shall be dismissed.
Surface Bargaining
In the Partial Warning Letter, I further concluded that the allegation of surface bargaining was
also time-barred. 	CCPOA argues this allegation is also timely based on the continuing
The statement of the charge attached to the Second Amended Charge is labeled
"Addendum to Second Amended Unfair Practice Charge." The analysis herein is based on an
assumption that the reference to "Addendum" is intended to denote that the Second Amended
Charge supplements, and does not supplant, the charge as originally filed and earlier amended.

violations doctrine. However, the Second Amended Charge does not allege any additional
facts with respect to conduct by the State that occurred pre-impasse and during the six-month
period preceding the filing
of
the instant charge. 	Thus, pursuant to Corrections, the surface
bargaining allegation must be dismissed
as
untimely.
The Second Amended Charge does not address the analysis found at page 8
of
the Partial
Warning Letter with respect to a possible violation
of
Government Code section 3519(e).
Thus, this allegation is dismissed for the reasons set forth in the Partial Warning Letter.
Entire Agreement
The Second Amended Charge does not appear to address the analysis
of
this allegation found
at pages 8 and 9
of
the Partial Warning Letter. Thus, this allegation
is
dismissed for the
reasons set forth in the Partial Warning Letter.
Implementation
of
Changes Not Comprehended within LBFO (Union Leave)3
Release Time Bank
In the Second Amended Charge, CCPOA correctly notes that the discussion in the Partial
Warning Letter erred factually by stating that changes to the Release Time Bank provision
of
the expired MOU were not included in the State's LBFO. However, the Partial Warning Letter
did correctly quote the State's letter with respect to the implementation on this point. In its
letter, the State stated that Release Time Bank would continue "consistent with the terms and
conditions"
of
a stipulated settlement.
According to CCPOA, the reference to the stipulated settlement with regard to the Release
Time Bank provided for lesser benefits than were proposed earlier by the State, including in
the LBFO. 	However, as discussed in the Partial Warning Letter, the applicable test is whether
the State implemented changes the parties did not discuss during negotiations "which are less
than the status quo." (Laguna Salada Union School District (1995) PERB Decision No. 1103;
emphasis added.) The charge does not establish that the State's continuation
of
the Release
Time Bank "consistent with the terms and conditions"
of
a stipulated settlement constituted a
changes that was less than the status quo. This allegation must therefore be dismissed.
4
As noted earlier, this Partial Dismissal Letter does not address allegations with respect
to State Vice-Presidents Leave.
The State, including in its LBFO, made proposals regarding various changes to the
Release Time Bank provision. The proposed changes included an increase in the bankable
hours from 10,000 to 35,000.
4

Chapter Presidents' Release Day
In its Second Amended Charge, CCPOA's representative alleges that the status of this benefit
is "not clear," but that "counsel preparing this charge is aware of no official correspondence
received by CCPOA that ends the benefit." Absent factual allegations establishing that this
benefit was terminated by the State, no violation may be found, and allegations concerning this
benefit are dismissed.
Discrimination/Retaliation
In the Partial Warning Letter, I concluded that this allegation lacked "factual foundation to
support an inference that the State's actions were caused by any protected activity on the part
of CCPOA or its members." The Second Amended Charge, while it elaborates on actions of
CCPOA, its officers, and members, does not cure the defect identified by the Partial Warning
Letter. 	For this reason, and based on the facts and reasons contained in the Partial Warning
Letter, this allegation is dismissed.
Implementation without Determination of Impasse
The discussion of this allegation in the Partial Warning Letter consisted of the following:
CCPOA also alleges in the amended charge that Dills Act section
3517.8 requires a determination of impasse by PERB in order for
the State to implement its LBFO, and that the State unilaterally
implemented in this case without a determination of impasse.
However, as previously discussed, PERB did make an impasse
determination leading to the appointment of a mediator in this
dispute in May 2007, and neither the statute nor PERB
regulations provides for a subsequent administrative
determination regarding impasse by PERB. 	PERB's regulations
reference Government Code section 3518 with regard to a
determination of impasse and appointment of a mediator under
the Dills Act, but there is no reference in the applicable
regulations to Dills Act section 3517. 8. For these reasons, this
allegation also fails to state a prima facie violation.
The Second Amended Charge concludes that the above-quoted analysis "makes no sense," but
offers no authority in statute, regulation, or case law to support finding a violation on the
grounds alleged. Thus, this allegation must also be dismissed.
Conclusion
Based on the facts and reasons set forth in this letter and the attached Partial Warning Letter,
each and all of these allegations are dismissed for failure to state a prima facie case.

Right to Appeal
you may obtain a review
of
this dismissal by filing an appeal
with the Board itself within twenty (20) calendar days after service
of
this dismissal.
(Regulation 32635(a).) Any document filed with the Board must contain the case name and
number, and the original and five (5) copies
of
all documents must be provided to the Board.
Pursuant to PERB Regulations,5
A document is considered "filed" when actually received during a regular PERB business day.
(Regulations 32135(a) and 32130; see also Government Code section 11020(a).) A document
is also considered "filed" when received by facsimile transmission before the close
of
business
together with a Facsimile Transmission Cover Sheet which meets the requirements
of
Regulation 32135(d), provided the filing party also places the original, together with the
required number
of
copies and proof
of
service, in the U.S. mail. (Regulation 32135(b ), ( c)
and (d); see also Regulations 32090 and 32130.)
The Board's address is:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95811-4124
(916) 322-8231
FAX: (916) 327-7960
If
you file a timely appeal
of
the refusal to issue a complaint, any other party may file with the
Board an original and five copies
of
a statement in opposition within twenty (20) calendar days
following the date
of
service
of
the appeal. 	(Regulation 32635(b).)
Service
All documents authorized to be filed herein must also be "served" upon all parties to the
proceeding, and a "proof
of
service" must accompany each copy
of
a document served upon a
party or filed with the Board itself. (See Regulation 32140 for the required contents.) The
document will be considered properly "served" when personally delivered or deposited
in
the
mail or deposited with a delivery service and properly addressed. A document may also be
concurrently served via facsimile transmission on all parties to the proceeding. 	(Regulation
32135(c).)
Extension
of
Time
A request for an extension of time, in which to file a document with the Board itself, must be
in writing and filed with the Board at the previously noted address. A request for an extension
PERB's Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.
5

must be filed at least three (3) calendar days before the expiration
of
the time required for
filing the document. 	The request must indicate good cause for and,
if
known, the position
of
each other party regarding the extension, and shall be accompanied by
proof
of
service
of
the
request upon each party. 	(Regulation 32132.)
Final Date
If no appeal is filed within the specified time limits, the dismissal will become final when the
time limits have expired.
Sincerely,
TAMI R. BOGERT
General Counsel
By
____________
_
Les Chisholm
Division Chief
Attachment
cc: Paul M. Starkey

PUBLIC EMPLOYMENT RELATIONS BOARD
c Office of the General Counsel
1031 18th Street
Sacramento, CA 95811-4124
Telephone: (916) 327-8383
Fax: (916) 327-6377
October 22, 2007
Gregg McLean Adam, Attorney
Carroll, Burdick & McDonough
44 Montgomery Street, Suite 400
San Francisco, CA 94104
Re: 	California Correctional Peace Officers Association v. State of California (Department
of Personnel Administration)
Unfair Practice Charge No. SA-CE-1621-S
PARTIAL WARNING LETTER
Dear Mr. Adam:
The above-referenced unfair practice charge was filed on September 25, 2007, and amended on
October 2, 2007. The California Correctional Peace Officers Association (CCPOA) alleges
that the State of California (Department of Personnel Administration) (State or DP A) violated
the Ralph C. Dills Act (Dills Act) at: (1) section 3517 by failing to provide necessary and
relevant information requested by CCPOA in the course of the parties' negotiations, and by
engaging in bad faith, or surface, bargaining; (2) sections 3516, 3516.5, and 3517 by
implementing a last, best, and final offer (LBFO) that "supercedes and cancels" prior
bargaining history, past practices, and "articulations, understandings, interpretations and/or
applications" of the parties' entire agreement article (Section 27.01 of the expired
memorandum of understanding (MOU)), and by placing artificial barriers on future
negotiations; (3) section 3517.8 by implementing the State's LBFO with a three-year duration; 1
(4) sections 3517 and 3517.8 by impleme:1;1ting changes to Chapter President Release Day, the
Release Time Bank, and Vice President Leave that are not reasonably comprehended in the
State's LBFO; (5) sections 3515, 3515.5, and 3519 by interfering with CCPOA's protected
activity and discriminating against CCPOA in retaliation for prior protected activity; and (6)
section 3517.8 by implementing the LBFO without a determination of impasse being made by
PERB.
CCPOA is the exclusive representative of State Bargaining Unit 6 - Corrections. The most
recent MOU between CCPOA and the State expired by its own terms as of June 30, 2006. 	By
letter dated April 13, 2006, DP A notified CCPOA of its readiness to commence bargaining
toward a su
The alleged violation based on implementation of a three-year duration is not
addressed by this Partial Warning Letter.
ccessor MOU. Attached to that letter was a four-page statement of the State's
Notice has been taken of the contents of PERB's files concerning a related impasse
case, PERB Case No. SA-IM-3041-S.
x
2

initial bargaining proposals. On July 30, 2006, DP A presented a more detailed and
voluminous set
of
contract proposals. The proposed term
of
the new MOU at that point was
from the date
of
ratification to June 30, 2008.
DP A Director Dave Gilb appeared at the negotiations session
of
March 29, 2007 to explain the
concepts
of
a new package that the State had prepared on March 22. At that meeting CCPOA
President Mike Jimenez repeatedly interrupted Gilb and ultimately advised him to stop
"wasting his time." Following the break up
of
that meeting, CCPOA's President wrote to DPA
and advised that "as long as DP A chooses to engage in the obvious gamesmanship the current
offer exudes, we can
do
nothing but sit back and watch as valuable time slips away." This
April 2 response concluded with "please consider this (letter) a counterproposal." The letter
contained no specific contract language.
On April 3, 2007, DPA attempted to schedule further meetings but received no response. 	On
April 6, 2007, DPA sent the March 22 proposal, including a three-year duration but with an
option for a fourth year.
On April 6, 2007, CCPOA sent two letters to DP
A,
one an opinion letter from Jimenez in
which he concludes with a purported quote from Woodrow Wilson: "Nothing chills pretense
like exposure." The second letter from CCPOA Chief of Labor Steve Weiss was an
information request seeking background on reasons for DP A's attempt to reduce the entire
agreement clause
of
the contract and expand the management rights provisions.
The State again attempted to get dates for further meetings. On April 11, 2007, DPA wrote to
CCPOA and accused CCPOA
of
stalling and asking for information it must already have, e.g.,
the total number
of
grievances outstanding and copies of grievances in which the State's
response was untimely.
On April 13, 2007, Jimenez wrote to DPA and stated:
.. .it seems that each time we get together we grow further apart.
Accordingly, since you feel so strongly about the generosity
of
your offer and your perceived legitimate management needs, the
CCPOA Executive Council has decided to eliminate any further
unhealthy interactions and permit you to send out your proposal
for a vote
of
the CCPOA membership. We have no intention of
delaying, frustrating or aggravating the negotiations process.
On April 20, 2007, CCPOA's attorney, Gregg Adam, wrote to DPA and stated "we have no
confidence that an agreement can be reached with the State's present proposal as the
framework for negotiations." He continued by indicating that CCPOA had multiple proposals
that had not yet been given to DP A.

On May 10, 2007, the State filed with PERB a Request for Impasse Determination/
Appointment
of
Mediator (PERB Case No. SA-IM-3041-S). CCPOA opposed the request but
the request was approved and a mediator appointed on May 17, 2007.
On August 22, 2007, just prior to a scheduled mediation session, CCPOA informed the
mediator that it was withdrawing from mediation and would not participate further. 	Later that
day, DP A submitted to CCPOA a 300-plus page package proposal, stating the offer would
remain "on the table" for two weeks. The proposal was for a MOU
of
three years duration,
expiring on June 30, 2010. CCPOA responded to the August 22 proposal by letter dated
August 31, 2007. The response stated that the proposal had been reviewed with delegates to a
CCPOA training conference, and that the delegates had approved a motion to submit 30
questions about the August 22 package proposal (with a request that the correspondence, the
questions, and any response to the questions be posted on the DPA website).
3
By letter dated September 4, 2007, DPA Director Gilb responded to CCPOA Executive Vice
President Chuck Alexander. Responding specifically to CCPOA claims that it could not enter
into agreements that it did not understand, and thus needed to ask and receive responses to
questions about the proposals, Gilb's letter, in part, stated:
Any lack
of
understanding on the part
of
the CCPOA negotiating
team
is
calculated ignorance. The State has been attempting to
bargain/mediate a successor MOU for well over a year with
CCPOA. 	CCPOA, however, has made it abundantly clear that it
is
not interested in a new contract. 	CCPOA has not supplied even
one substantive proposal or counterproposal during this entire
process. All CCPOA has done is reject each
of
the State's offers
and has proposed only that the language
of
the expired MOU
remam.
Regardless
of
the number
of
times that the State provides
responses to CCPOA's endless supply
of
questions, the volume
of documents provided in response to CCPOA's requests for
information, the compromises the State has made in its proposals,
CCPOA's refrain is the same: "We don't trust the State and we
don't understand the State's proposals." CCPOA may well
distrust the State, but with respect to the State's proposals,
CCPOA simply does not like or agree with them. I think you
certainly understand them.
Addressing the 30 questions, Gilb' s letters refers to them as "simply rhetorical or
inconsequential," or as already responded to, or that a "simple reading of the proposed
The assigned mediator notified PERB of CCPOA's action by letter dated September
6, 2007, and PERB records show Case No. SA-IM-3041-S as closed effective September 10,
2007 (the date of receipt of the mediator's letter).

language would answer," or as ones that CCPOA already knows the answer to, or as "simply
baffling." That said, Gilb's letter provides a response to 15 of the questions.
On September 12, 2007, the State presented its formal Last, Best and Final Offer to CCPOA,
with a proposed duration until June 30, 2010. CCPOA rejected the offer on September 17,
2007. 	On September 18, 2007, DPA notified CCPOA that, pursuant to Dills Act section
3517 .8, the State was "exercising its right to implement all three years of its last, best and final
offer as indicated [in an attached table] and subject to Legislative funding of expenditures."
The implementation letter also concluded with the following paragraph:
In the absence of a contract, union paid leave, among other
things, no longer exists as the parties have previously understood
it. To the extent that the union executive leadership desires to
remain off work (outside of an institution/facility), please contact
[DPA] no later than close of business on September 25, 2007, to
discuss how this could be accomplished extra-contractually.
Release Time Bank, however, will continue consistent with the
terms and conditions of the July 1, 2008, [sic] Stipulated
Settlement (Case# 05AS05470).
By letter dated September 20, 2007, Margie McCune, Chief, Office of Labor Relations, of the
California Department of Corrections & Rehabilitation (CDCR), informed CDCR
administrators that Chapter President Release Day 	would end as of October 1, 2007, and that
any [CCPOA] Chapter President designated to utilize a release day should be required to report
for duty per their normal work schedule.
4
Statutory Provisions
The statutory provisions applicable to this case are as follows:
3517. 	Meet and confer in good faith
The Governor, or his representative as may be properly
designated by law, shall meet and confer in good faith regarding
wages, hours, and other terms and conditions of employment with
representatives of recognized employee organizations, and shall
consider fully such presentations as are made by the employee
organization on behalf of its members prior to arriving at a
determination of policy or course of action.
The Chapter President Release Day, which permits each CCPOA chapter president
one day per week to conduct union business (e.g., filing grievances) was first agreed to in 2004
as a part of the Addendum to the 2001-2006 MOU.
4

"Meet and confer in good faith" means that the Governor or such
representatives as the Governor may designate, and
representatives of recognized employee organizations, shall have
the mutual obligation personally to meet and confer promptly
upon request by either party and continue for a reasonable period
of time in order to exchange freely information, opinions, and
proposals, and to endeavor to reach agreement on matters within
the scope of representation prior to the adoption by the state of its
final budget for the ensuing year. 	The process should include
adequate time for the resolution of impasses.
3517.61. 	State employees in State
Bargaining Unit 6; application of
memorandum of understanding
Notwithstanding Section 3517.6, for state employees in State
Bargaining Unit 6, in any case where the provisions of [certain
statutes] are in conflict with the provisions of a memorandum of
understanding, the memorandum of understanding shall be
controlling without further legislative action. In any case where
the provisions of [certain statutes] are in conflict with the
provisions of a memorandum of understanding, the terms of the
memorandum of understanding shall be controlling unless the
State Personnel Board finds those terms to be inconsistent with
merit employment principles as provided for by Article VII of the
California Constitution. Where this finding is made, the
provisions of the Government Code shall prevail until those
affected sections of the memorandum of understanding are
renegotiated to resolve the inconsistency. If any provision of the
memorandum of understanding requires the expenditure of funds,
those provisions of the memorandum of understanding may not
become effective unless approved by the Legislature in the
annual Budget Act. If any provision of the memorandum of
understanding requires legislative action to permit its
implementation by amendment of any section not cited above,
those provisions of the memorandum of understanding may not
become effective unless approved by the Legislature.
3517.8. 	Expiration of memoranda of
understanding; continued effect.
(a) If a memorandum of understanding has expired, and the
Governor and the recognized employee organization have not
agreed to a new memorandum of understanding and have not
reached an impasse in negotiations, subject to subdivision (b), the

parties to the agreement shall continue to give effect to the
provisions
of
the expired memorandum
of
understanding,
including, but not limited to, all provisions that supersede
existing law, any arbitration provisions, any no strike provisions,
any agreements regarding matters covered in the Fair Labor
Standards Act
of
1938 (Chapter 8 (commencing with Section
201)
of
Title 29
of
the United States Code)), and any provisions
covering fair• share fee deduction consistent with Section 3 515. 7.
(b)
	If
the Governor and the recognized employee organization
reach an impasse in negotiations for a new memorandum
of
understanding, the state employer may implement any or all
of
its
last, best, and final offer. Any proposal in the state employer's
last, best, and final offer that,
if
implemented, would conflict with
existing statutes or require the expenditure
of
funds shall be
presented to the Legislature for approval and,
if
approved, shall
be controlling without further legislative action, notwithstanding
Sections 3517.5, 3517.6, and 3517.7. Implementation
of
the last,
best, and final offer does not relieve the parties
of
the obligation
to bargain in good faith and reach an agreement on a
memorandum
of
understanding
if any
circumstances change, and
does not waive any rights that the recognized employee
organization has under this chapter.
In considering the enactment
of
section 3517.8, the Third Reading analysis
of
the bill prepared
for the Assembly Committee on Public Employees, Retirement and Social Security noted that:
In the case
of
DPA
v.
Greene (1992) [5 Cal.App.4th 155], the court
considered whether the state could unilaterally implement its last,
best, and final
off
er after declaring "impasse" at the bargaining
table. The court held that, where the terms are the subject
of
Government Code provisions which were superceded by the MOU,
once the MOU expired, the Government Code provisions spring
back into existence, and DP A must implement those provisions.
Therefore, DPA can implement its last, best, and final offer only as
to those terms not covered by government codes.
Aside from the discussion
of
the implications
of
the Greene decision, the legislative history
regarding the enactment
of
this new provision focused on the policy reasons for providing for
the continuation
of
binding grievance arbitration and fair share fees following the expiration
ofa negotiated agreement. In this respect, the bill analyses ·prepared for the legislative
committees considering the legislation noted the Board's decision in State
of
California,
Department
of
Youth Authority (1992) PERB Decision No. 962-S. In that case, the Board
adopted the holding of Litton Financial Printing v. NLRB (1991) 501 U.S. 190, that negotiated
grievance arbitration provisions do not survive the expiration of the agreement.

Requests for Information
The exclusive representative
is
entitled to all information that is "necessary and relevant" to
the discharge
of
its duty
of
representation. (Stockton Unified School District (1980) PERB
Decision No. 143.) PERB uses a liberal standard, similar to a discovery-type standard, to
determine relevance
of
the requested information. (California State University (1986) PERB
Decision No. 613-H.) Failure to provide such information is a per se violation
of
the duty to
bargain in good faith.
The duty to bargain in good faith includes the obligation
of
each party to explain the reasons
for a bargaining position sufficient to "permit the negotiating process to proceed on the basis
of
mutual understanding." (Jefferson School Distr~ct (1980) PERB Decision No. 133.)
However, the Board's discussions
of
this obligation are distinguished from that found
in"request for information" cases, first because the failure to provide relevant and necessary
information
is
held to per se violate the duty to bargain (Stockton Unified School District,
supra, PERB Decision No. 143), while the failure to adequately explain a bargaining proposal
or position is considered within the totality
of
circumstances. (Compton Community College
District (1989) PERB Decision No. 728.) In addition, "request for information" cases deal
with just that, requests for information; alleged violations based on requests for a party's
thought process are outside the scope
of
such cases. (See, for example, Ventura County
Community College District, supra, PERB Decision No. 1340.)
Here, the alleged violations based on the June 6 and 7, August 4, September
6,
and November
6,
2006 information requests are time-barred by Dills Act section 3514.S(a)(l), which prohibits
PERB from issuing a complaint with respect to "any charge based upon an alleged unfair
practice occurring more than six months prior to the filing
of
the charge." The limitations
period begins to run once the charging party knows, or should have known,
of
the conduct
underlying the charge. (Gavilan Joint Community College District (1996) PERB Decision No.
1177.) The statute
of
limitations is an affirmative defense which has been raised by the State
in this case. (Long Beach Community College District (2003) PERB Decision No. 1564.)
Therefore, charging party now bears the burden
of
demonstrating that the charge is timelyfiled~
(cf. Tehachap·i Unified School District (1993) PERB Decision No. 1024; State
ofCalifornia (Department
of
Insurance) (1997) PERB Decision No. 1197-S.)
The facts surrounding the June 25 and August 31, 2007 requests, which were made after the
parties were in mediation, also fail to establish prima facie evidence that an unfair practice has
been committed. This conclusion is reached based on the questions themselves that were
submitted by CCPOA (most
of
which were
of
the "why are you proposing a change" variety),
the absence
of
evidence that the June 25 questions were even presented to the State as a
"request for information," and the fact that the State did respond in writing to the August 31
questions without any subsequent renewal of the request by CCPOA. (See, for example, King
City Joint Union High School District (2005) PERB Decision No. 1777 [no violation found
where the exclusive representative did not express dissatisfaction with the employer's
responses to its information requests, nor did the union clearly communicate its disagreement
with the employer sufficiently to require a more detailed response].)

Surface Bargaining
The charge alleges that the employer violated Dills Act sections 3 517 and 3 519(c) by engaging
in bad faith or "surface" bargaining. It is the essence
of
surface bargaining that a party goes
through the motions
of
negotiations, but in fact is weaving otherwise unobjectionable conduct
into an entangling fabric to delay or prevent agreement. (Muroc Unified School District (1978)
PERB Decision No. 80.) Where there is an accusation
of
surface bargaining, PERB will
resolve the question
of
good faith by analyzing the totality
of
the accused party's conduct. 	The
Board weighs the facts to determine whether the conduct at issue "indicates an intent to subvert
the negotiating process or is merely a legitimate position adamantly maintained." (Oakland
Unified School District (1982) PERB Decision No. 275.)
It is clear, however, that while a party may not merely go through the motions, it may lawfully
maintain an adamant position on any issue. Adamant insistence on a bargaining position is not
necessarily refusal to bargain in good faith. 	(Oakland Unified School District, supra, PERB
Decision No. 275.) "The obligation
of
the employer to bargain in good faith does not require
the yielding
of
positions fairly maintained." (NLRB
v.
Herman Sausage
Co.
(5th Cir. 1960)
275 F.2d 229 [45 LRRM 2829, 2830].)
Here, the allegation
of
bad faith bargaining in violation
of
Government Code section 3519(
c)
is
based entirely on conduct outside the six months statute
of
limitations, as it relies on the
alleged failure
of
the State to respond to information requests submitted between June 6 and
November 6, 2006, and the alleged unresponsiveness
of
State representatives at bargaining
sessions held in September 2006.
Additionally, while not time-barred, the alleged failure
of
the State to participate in good faith
in statutory impasse procedures in violation of Government Code section 3 519(e), under a
surface bargaining theory, is also unpersuasive, as the only conduct in question concerns the
June 25 and August 31, 2007 "requests for information" discussed above. 5
Entire Agreement
CCPOA's amended charge includes an allegation that the State's implementation violates the
Dills Act based on DP A's statement that the LBFO "supercedes and cancels" prior bargaining
history, past practices, and other interpretations of the parties under Section 27.01 (the Entire
Agreement article)
of
the expired MOU. The charge then cites language
of
changes to Section
27.01 proposed by DPA in the course of bargaining.
CCPOA does not expressly allege a violation of Dills Act section 3 519(e ), but it is
necessary under applicable precedent to analyze conduct before and after the initiation
ofstatutory impasse procedures as separate unfair practice allegations. (See Moreno Valley
Unified School District
v.
Public Employment Relations Board (1983) 142 Cal.App.3d 191
and, for example, Temple City Unified School District (1990) PERB Decision No. 841.)
5

This allegation, however, appears to overlook a statement made in documents accompanying
the State's notice to CCPOA
of
the implementation
of
terms and conditions. The statement
is
that, "Any provision
of
the expired MOU that has terminated by virtue
of
implementation,
referenced in an implemented term, such
as
any variation
of
the entire agreement requirements
or arbitration,
is
no longer operable or applicable,"
The theory
of
CCPOA's allegation in this regard
is
not clear. An employer may not
unilaterally impose a waiver or limitation on a union's right to bargain. (Rowland Unified
School District (1994) PERB Decision No. 1053.) An entire agreement article, whatever its
particular terms, has as an essential characteristic a limitation on both parties' right and/or duty
to bargain during the term
of
an agreement. DP
A's
omission
of
the entire agreement article,
and
of
any changes to it, from its implementation appears consistent with the relevant case law,
and thus does not support finding a violation.
Implementation
of
Changes Not Comprehended within LBFO (Union Leave)
As observed by the Board in Laguna Salada Union School District (1995) PERB Decision
No. 1103 (Laguna Salada), citing Campbell Municipal Employees Assn.
v.
City
of
Campbell
(1982)
131
Cal.App.3d 416, it is well established that public-sector employers in California
may lawfully make unilateral changes in terms and conditions
of
employment only after
completing statutory impasse procedures. As stated by the Board in Modesto City Schools
(1983) PERB Decision No. 291, "impasse under EERA is identical to impasse under the
NLRA; either party may decline further requests to bargain, and the employer may implement
policies reasonably comprehended within previous offers made and negotiated between the
parties."
However, the "term 'reasonably comprehended' excludes those changes better than the last
offer and also any changes which the parties did not discuss during negotiations which are less
than the status quo." (Laguna Salada, citing Charter Oak Unified School District (1991)
PERB Decision No. 873.)
This issue would, under certain facts, ultimately require reconciling the "any or all" language
of
section 3517.8, the term "reasonably comprehended" as discussed in Laguna Salada and
other cases, and the holdings
of
Litton with respect to provisions
of
a MOU that do not survive
expiration of the agreement. While CCPOA is correct that Litton does not address union leave,
there remains the question whether the Legislature intended, in adopting section 3517.8, to
leave in place existing provisions of a MOU, when the State unilaterally imposes terms and
conditions and has not previously proposed deletion
of
the disputed items.
In the instant case, though, it is not necessary to answer the question. Although CCPOA
alleges that changes to Chapter President Release Day, Release Time Bank, and Vice President
Leave were not "contemplated" by the State's LBFO, the documents submitted with its charge
do not support such a conclusion. The package offer presented by DPA on September 12,
2007, and identified as the State's Last, Best and Final Offer, included the following relevant

provisions, and did
not
include specific reference to changes in either Chapter President
Release Day6 or Vice President Leave:
The State continues to propose to update the MOU to recognize
the parties' settlement
of
the annual donation and use cap
of
35,000 hours
of
release time bank. In addition, permit rank and
file Chapter Presidents to utilize this Release Time Bank instead
of
the former weekly official business/State release time.
****************************************************
All sections
of
the
MOU
and addenda not identified in any
of
the
above proposals are deleted.
In its notice
of
implementation, the State's letter,
in
relevant part, stated that:
In the absence
of
a contract, union paid leave, among other
things, no longer exists as the parties have previously understood
it. To the extent that the union executive leadership desires to
remain
off
work (outside
of
an
institution/facility), please contact
[DPA] to discuss how this could be accomplished extra-
contractually. Release Time Bank, however, will continue
consistent with the terms and conditions
of
the July 1, 2008 [sic]
Stipulated Settlement
(Case#
0SAS05470).
A comparison
of
the relevant provisions
of
the LBFO and the notice
of
implementation does
not factually support a conclusion that the State implemented changes in this respect that were
not contemplated by the LBFO.7
Discrimination/Retaliation
To demonstrate a violation
of
Dills Act section 3519(a), the charging party must show that:
(1) the employee exercised rights under the Dills Act; (2) the employer had knowledge
of
the
exercise
of
those rights; and (3) the employer imposed or threatened to impose reprisals,
discriminated or threatened to discriminate, or otherwise interfered with, restrained, or coerced
the employees because
of
the exercise
of
those rights. (Novato Unified School District (1982)
PERB Decision No. 210 (Novato); Carlsbad Unified School District (1979) PERB Decision
No. 89.)
At least one earlier package offer included a proposal to delete Chapter President
Release Day but to allow such time to be charged to the Release Time Banlc.
I note, but do not rely upon for purposes
of
this letter, the State's subsequent written
notification to CCPOA that "any communications concerning the cancellation
of
Chapter
Presidents Release Time," as well as any communications received by union officials directing
a return to work, were rescinded.
7

However, PERB Regulation 32615(a)(5) requires, inter alia, that an unfair practice charge
include a "clear and concise statement
of
the facts and conduct alleged to constitute an unfair
practice." Thus, the charging party's burden includes alleging the "who, what, when, where
and how"
of
an unfair practice. (State
of
California (Department
of
Food and Agriculture)
(1994) PERB Decision No. 1071-S, citing United Teachers-Los Angeles (Ragsdale) (1992)
PERB Decision No. 944.) Mere legal conclusions are not sufficient to state a prima facie case.
(Ibid.; Charter Oak Unified School District (1991) PERB Decision No. 873.)
This aspect
of
CCPOA's charge lacks factual foundation to support an inference that the
State's actions were caused by any protected activity on the part
of
CCPOA or its members.
Implementation without Determination
of
Impasse
CCPOA also alleges in the amended charge that Dills Act section 3517.8 requires a
determination
of
impasse by PERB in order for the State to implement its LBFO, and that the
State unilaterally implemented in this case without a determination
of
impasse. However, as
previously discussed, PERB did make an impasse determination leading to the appointment
of
a mediator in this dispute in May 2007, and neither the statute nor PERB regulations provides
for a subsequent administrative determination regarding impasse by PERB. PERB's
regulations reference Government Code section 3518 with regard to a determination
of
impasse and appointment
of
a mediator under the Dills Act, but there
is
no reference in the
applicable regulations to Dills Act section 3517.8. For these reasons, this allegation also fails
to state a prima facie violation.
Conclusion
For these reasons the allegations that the State violated the Dills Act
at:
section 3517 by failing
to provide necessary and relevant information requested by CCPOA in the course
of
the
parties' negotiations, and by engaging in bad faith, or surface, bargaining; sections 3 516,
3516.5, and 3517 by implementing a last, best, and final offer (LBFO) that "supercedes and
cancels" prior bargaining history, past practices, and "articulations, understandings,
interpretations and/or applications"
of
the parties' entire agreement article (Section 27.01
of
the expired memorandum
of
understanding (MOU)), and by placing artificial barriers on future
negotiations; sections 3517 and 3517
.8
by implementing changes to Chapter President Release
Day, the Release Time Bank, and Vice President Leave that are not reasonably comprehended
in the State's LBFO; sections 3515, 3515.5, and 3519 by interfering with CCPOA's protected
activity and discriminating against CCPOA in retaliation for prior protected activity; and
section 3517.8 by implementing the LBFO without a determination of impasse being made by
PERB, as presently written, do not state a prima facie case.
	If
there are any factual
inaccuracies in this letter or additional facts that would correct the deficiencies explained
above, please amend the charge. 	The amended charge should be prepared on a standard PERB
unfair practice charge form, clearly labeled Second Amended Charge, contain all the facts and
allegations you wish to make, and be signed under penalty of perjury by the charging party.
The amended charge must have the case number written on the top right hand corner of the
charge form. 	The amended charge must be served on the respondent's representative and the

original proof
of
service must be filed with PERB. 	If I do not receive an amended charge or
withdrawal from you before October 31, 2007, I shall dismiss the above-described allegations
from your charge.
	If
you have any questions, please call me at the telephone number listed
above.
Sincerely,
Les Chisholm
Division Chief