State of California (Department of Developmental Services and Office of Protective Services) (PERB 2062S)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
STATE EMPLOYEES INTERNATIONAL
UNION LOCAL
1000,
Charging Party,
V.
STATE
OF CALIFORNIA (DEPARTMENT OF
DEVELOPMENTAL
SERVICES & OFFICE OF
PROTECTIVE SERVICES),
Respondent.
Case No. SA-CE-1660-S
PERB Decision No. 2062-S
September 14, 2009
Appearances: 	Service Employees International Union Local 1000 by Jo Ann Juarez-Salazar,
Representative; State
of
California (Department
of
Personnel Administration) by
Jennifer
M.
Garten, Labor Relations Counsel, for State
of
California (Department
of
Developmental
Services & Office
of
Protective Services).
Before McKeag, Neuwald and Wesley, Members.
DECISION
NEUW
ALD, Member: This case is before the Public Employment Relations
Board
(Board) on appeal by the State Employees International Union Local 1000
of
an
administrative
law
judge's
(ALJ) proposed decision (attached). The complaint alleged that the State
of
California (Department
of
Developmental Services & Office
of
Protective Services)
violated
the Ralph C. Dills Act (Dills Act) 1 by (1) replacing a security tower with a security
booth,
and
(2) dismantling other security towers and replacing them with surveillance cameras,
without
prior notice and an opportunity to meet and confer over the effects
of
these changes.
	The
charge alleged that this conduct constituted a violation
of
Dills Act section 3 519, sub
di visions
(a), (b) and (c). The ALJ dismissed the complaint and underlying unfair practice charge.
1The Dills Act is codified at Government Code section 3512 et seq.

2
The Board reviewed the entire record in this matter. In light
of
our review, the
Board
finds the proposed decision was well-reasoned, adequately supported by the record and
in
accordance with applicable law. Accordingly, the Board adopts the ALJ's proposed
decision
as
a decision
of
the Board itself.
ORDER
The complaint and underlying unfair practice charge in Case No. SA-CE-1660-S
are
hereby DISMISSED.
Members McKeag and Wesley joined in this Decision.
2

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
SEIU LOCAL 1000,
Charging Party,
V.
STATE OF CALIFORNIA (DEPARTMENT OF
DEVELOPMENTAL SERVICES & OFFICE OF
PROTECTIVE SERVICES),
Respondent.
UNFAIR PRACTICE
CASE NO. SA-CE-1660-S
PROPOSED DECISION
(3/24/2009)
Appearances: 	Service Employees International Union Local 1000, by Jo Ann Juarez-Salazar,
URC Union Representative; Jennifer Garten, Legal Counsel, Department
of
Personnel
Administration for State
of
California (Department
of
Development Services & Office
of
Protective Services).
Before Bernard McMonigle, Chief Administrative Law Judge.
PROCEDURAL HISTORY
In this case, a union alleges that the state employer violated the Ralph C. Dills
Act
(Dills Act or Act) by replacing security towers with security booths and surveillance
cameras
without bargaining the effects
of
those actions. The employer denies any unfair practice.
On February 19, 2008, Service Employees International Union Local 1000
(SEIU
or
Union) filed an unfair practice charge against the State
of
California, Department
of
Developmental Services & Office
of
Protective Services (Department or DDS). 	On
March
6,
2008, the Office
of
the General Counsel
of
the Public Employment Relations Board
(PERB)
issued a complaint alleging that DDS violated the Act when it replaced a security tower
with
a
security booth without meeting and conferring over the effects of the change in policy.
	The
complaint also alleged, as a separate violation, that the Department violated the Act by
adopting a policy to replace four other security towers with surveillance cameras without

that	meeting and conferring over the effects
of
that change in policy. It is alleged 	with
each
of
these acts, DDS violated Dills Act section 3519, subdivisions (a), (b) and (c). 1
and
	On
March 26, 2008, DDS filed its answer generally denying the allegations
	setting
forth several affirmative defenses. On that same date, an informal settlement conference
was
conducted by a PERB agent but the case was not settled.
it	A formal hearing was held on July 17, 2008. At the end
of
the hearing, 	was
agreed
that the parties would concurrently place briefs in the mail on September 8, 2008.
Respondent's post hearing brief was received on September 9, 2008. On Sept
by
	SEIU filed a request for an extension
of
time to file the closing brief which was opposed
DDS. On September 18, SEIU was granted an extension
of
time to file its closing
brief
no
later than September 29, 2008. DDS would have an opportunity to file a reply brief by
October 13, 2008.
ember 15,
request
	On October 6, 2008, SEIU filed its closing brief accompanied by a second
	for
The
	an extension
of
time. On October 9, that request was denied for lack
of
good cause.
parties were notified that SEIU' s closing brief would not be considered by the undersigned
and, accordingly, DDS was not to file a reply brief. Thus, the matter was submitted for
decision on October 9, 2008.
FINDINGS OF FACT
Ci)	
DDS is a State employer within the meaning
of
section 3513, subdivision
	ofthe
Dills Act. SEIU is the recognized employee organization within the meaning
of
section 3 513,
subdivision (b) and the exclusive representative for statewide bargaining units 1, 3, 4,
11,
I 4,
15,
17
and 20.
Code.	Unless otherwise indicated, all statutory references are to the Government 	The
Dills Act is codified at Government Code section 3512 and following. 	PERB Regulations are
codified at California Code of Regulations, title 8, section 31001 and following.
2

The Porterville Developmental Center (PDC) is a DDS facility that provides
24-hour
residential services for developmentally disabled individuals with medical and behavioral
problems. 	For the secure treatment program at PDC there is a perimeter fence with five
security towers and a security kiosk, each with a security guard.2 The primary responsibility
of
the guards is to observe and report unusual activity and prevent escapes.
Jeffrey Bradley (Bradley) is the Supervising Special Investigator that oversees all
security and police functions at PDC. He testified that as part
of
a facility expansion the
fence
line was moved and it was necessary to demolish Tower Two in March 2008. To
maintain
security, a kiosk was placed at the same location temporarily and a portable toilet installed
nearby. 	The staffing and duties remained the same. Bradley believed that, while the
view
of
the fence line was closer to the ground, the change did not inhibit a guard's view or
impede
performance
of
responsibilities.
Robert Johnson (Johnson) has been employed by DDS as a security guard for
ten
years.
He is the SEIU Chief Job Steward at PDC.
In the summer
of
2007, Johnson and other guards heard there would be new
construction at the facility that might result in the removal
of
Tower 2. Johnson
requested
information from his supervisors and the PDC Director. He was told to address his
questions
to the Office
of
Protective Services, the subdivision responsible for security. He made
several
requests, and over time received several responses as to timing
of
the tower removal.
	He
received no information regarding other changes.
In the fall of 2007, Johnson drove to DDS headquarters in Sacramento where he
met
with Devin Fong (Fong), the DDS labor relations specialist recently assigned to the
SEIU
bargaining unit. They discussed several issues regarding PDC including the use of
In addition, one "rover" security guard is assigned to each shift.
3

surveillance cameras. Fong could provide little information
as
he was new to the assignment.
However, Johnson was able to state his concerns.
Johnson testified that at some point he demanded DDS "cease and desist" from
removing Tower
2.
	Despite the demand, the tower was removed. It was replaced by a
kiosk
and his ability
to
observe the grounds was greatly reduced. At times, Johnson now walks
the
perimeter to increase his ability to observe. Unlike the tower, the kiosk contained no
bathroom
facilities or air conditioning, conditions which have been corrected.3 Guards were provided
with wireless telephones.
In February 2008, the security guards were informed that installation
of
electronic
surveillance would be a part
of
the new construction. They also were told by a construction
worker that fiber optic lines were being installed for surveillance purposes. Johnson and
other
guards became concerned that cameras in the towers would lead to layoffs.
Richard Chavez (Chavez) is also a security guard and a job steward at PDC. He
confirmed that the view from the.kiosk was greatly reduced from that
of
the Tower. He
was
also aware
of
employee concerns that the new surveillance system would result in job
loss.
Chavez recalled that SEIU representatives were invited by management to a
meeting
regarding the construction issues in February 2008. He testified the meeting was rejected
by
SEIU representative Jo Ann Juarez-Salazar because the DDS representative "did not
have
anything to bring to the table."
Steve Ensslein (Ensslein) has been a security guard at PDC for twelve years.
	At
the
time of this hearing, he was assigned to the kiosk. Ensslein testified that vision of the
fence
.,
Air conditioning was installed and a bathroom repaired nearby. Now, a bathroom
break requires calling for the rover guard as a temporary replacement.
4

However,
	line is
now
limited "so you have to physically get up
just
to see down the fence line.
you cannot see over the top
of
the compound."
On
December 21, Juarez-Salazar sent a letter to DDS alleging that the department
had
unilaterally implemented changes affecting bargaining unit members and requested to
meet
and confer.
On
January 28, 2008, DDS Acting
Chief
Labor Relations Division Brad Louie
replied
to what he described as SEIU's "Demand to Cease and Desist and Request to Meet and
Confer
Porterville Developmental Center (PDC)."4 In relevant part, the letter stated,
This letter is to acknowledge that the Department
of
Developmental Services (Department) is in receipt
of
your letter
dated December 21, 2007, and received by fax on the same date.
In your letter, you allege that the Department and Office
of
Protective Services at PDC have unilaterally implemented several
changes which have material and significant impact to the terms
and conditions
of
employment to the employees in Bargaining
Unit (BU) 15. In addition, the Service Employees International
Union (SEIU) Local 1000 is requesting to meet and confer over
the alleged working changes impacting BU
15
members.
The Department will evaluate the merits
of
the issues raised in
your letter, and determine
if
changes at
PDC's
Secured Treatment
Area (STA) Program does obligate the Department to notice
SEIU Local 1000
of
changes that impact working conditions
of
covered employees, pursuant to Article XXIV
of
the Collective
Bargaining Agreement between BU
15
and the State
of
California. After I have had a chance to review the circumstances
of
your concerns, I will get back to you for an update on or before
February 20, 2008.
Fong responded to Juarez-Salazar. He contacted her on February 13 to arrange a
meeting to discuss her December letter and employee concerns regarding possible job
loss.
They tentatively set a meeting for February 26. Juarez-Salazar said she would confirm
the
meeting after checking with her members.
Neither party entered the Juarez-Salazar letter of December 21, 2007, into evidence.
5

this	On
February 13, Fong also learned that SEIU had filed the unfair practice charge
in
matter. 5
On
February 21, Fong sent Juarez-Salazar an email asking her to confirm the
February
26
meeting. Juarez-Salazar responded,
Devin, as discussed yesterday, it is our position that a meet and
confer is required in this situation. It appears you are interested
in an informational meeting as a way to bypass a required meet
and confer: and consider the ULP & IR issue moot. Please
present any information you are interested in presenting at the
informational meeting. I will immediately pass this information
to our team.
There was no meeting and Fong sent no additional information. Fong recalled
that
there was no request from SEIU representatives to negotiate over specific effects
of
the
construction changes.
ISSUE
1. Did DDS violate its duty to bargain over the effects
of
replacing a security
tower
with a kiosk?
2. 	Did DDS violate its duty to bargain over the effects
of
its decision to install
surveillance cameras?
DISCUSSION AND CONCLUSIONS OF LAW
The formal hearing began with some confusion over the nature
of
the issue to
be
decided. 	After opening statements, I noted that the complaint issued by the Office
of the
General Counsel alleged that DDS violated the Dills Act when it failed to bargain over
the
effects
of
the decision to replace Tower 2 with a kiosk and the decision to install
surveillance
cameras; it did not allege that DDS violated the Act by failing to bargain over the two
5 The unfair practice charge was accompanied by a request that PERB seek injunctive
relief. That request was denied by the Board.
6

decisions. 	The SEIU representative expressed her belief that the complaint included an
alleged
failure to bargain over the decisions themselves.
Having again reviewed the complaint, I find no support for the expansive interpretation
urged by SEIU. I also note that SEIU representatives did not make a motion to amend the
complaint during four months between its issuance and the hearing in this matter; nor was
such
motion made at the hearing. 6 This case remains limited to the question
of
whether DDS
improperly failed to engage in effects bargaining.
When an employer makes a unilateral change, and the effects
of
the decision are
negotiable, the employer has a duty to provide an opportunity to bargain prior to
implementation. Compton Community College District (1989) PERB Decision No. 720.
	On
December 21, 2007, Juarez-Salazar sent DDS a demand to cease and desist from
implementing
decisions to close Tower 2 and to implement surveillance equipment at PDC. Tower 2
was
not
demolished until March 2008, surveillance cameras had not been installed at the time
of
this
hearing in July 2008. Accordingly, I find that SEIU had knowledge
of
these changes
with
sufficient time to request that DDS bargain over their effects.
The record in this case establishes that with the December
21
letter, SEIU
demanded
to
bargain over the decisions, asserting there were significant impacts on the terms and
conditions
of
employment. DDS did not agree to do so.
However, the issue here is not whether DDS violated the Dills Act by refusing
to
bargain over its decisions to make policy changes. The issue, as stated in the PERB
complaint,
is whether it violated the Act by refusing to bargain over negotiable effects
of
those
decisions.
Accordingly, there was no need to determine whether the changes required bargaining
or were within management's prerogative. State of California (Department
of Corrections)
(2000) PERB Decision No. 1381-S.
7

A union must make a demand to bargain over the effects that clearly identifies subjects
of
impact within the scope
of
bargaining. (Newman-Crows Landing Unified School District
(1982) PERB Decision No. 223; State
of
California (Department
of
Corrections) (2006)
PERB
Decision No. 1848-S.) The Board will not presume an effect on negotiable terms and
conditions
of
employment
as
a result
of
an employer change. (Imperial Unified School
District
(1990) PERB Decision No. 825.)
As the Board has recently stated, "[w]hen a union demands to meet and confer
over
the
effects
of
a [employer] decision, the demand must clearly identify the negotiable effects.
[Citation omitted.] 	Absent. such an identification, the employer has no duty to bargain.
[Citation omitted.] (Beverly Hills Unified School District (2008) PERB Decision No.
1969
.)
The record
is
devoid
of
facts demonstrating that SEIU representatives made a
demand
that identified any specific negotiable effects
of
the decisions to demolish Tower 2 or to install
surveillance equipment. Additionally, Fong provided unchallenged testimony that SEIU
did
not make such a demand.
At the hearing, union witnesses described effects
of
the subject decisions that
may
have
required bargaining by the employer. However, the burden was on SEID to demonstrate
that
it
made a valid request to bargain the effects. (Sylvan Union Elementary School District
(1992)
PERB Decision No. 919; State
of
California (Department
of
Corrections) (2006) PERB
Decision No. 1848-S.) It did not do so.
Accordingly, I conclude that DDS did not violate the Dills Act by refusing to
bargain
over the effects of the decision to dismantle a security tower or the effects of the decision to
install surveillance cameras.
8

PROPOSED ORDER
Based upon the foregoing findings
of
fact and conclusions
of
law and the entire
record
in this matter, it is found that the complaint and underlying unfair practice charge in
PERB
Case No. SA-CE-1660-S,
SEIU
Local 1000
v.
State
of
California (Department
of
Development
Services & Office
of
Protective Services) are without merit and they are hereby
DISMISSED.
Pursuant to California Code
of
Regulations, title 8, section 32305, this Proposed
Decision and Order shall become final unless a party files a statement
of
exceptions with
the
Public Employment Relations Board (PERB or Board) itself within 20 days
of
service
of
this
Decision. 	The Board's address is:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95811-4174
(916) 322-8231
FAX: (916) 327-7960
In accordance with PERB regulations, the statement
of
exceptions should identify
by
page citation
.or
exhibit number the portions
of
the record,
if
any, relied upon for such
exceptions. (Cal. Code Regs., tit.
8,
§ 32300.)
A document is considered filed when actually received during a regular PERB
business
day. (Cal. Code Regs., tit. 8, §§ 32135, subd. (a) and 32130; see also Gov. Code, §
11020,
subd. (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
California Code
of
Regulations, title 8, section 32135, subdivision (
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. (Cal. Code Regs., tit. 8, § 32135, subdivisions (b
),
( c)
and (d); see also Cal. Code Regs., tit. 8, §§ 32090 and 32130.)
9

Any statement
of
exceptions and supporting brief must be served concurrently with its
filing upon each party to this proceeding.
	Proof
of
service shall accompany each copy
served
on a party or filed with the Board itself. (See Cal. Code Regs., tit.
8, §§
32300, 32305,
32140,
and 32135, subd. (c).)
10
Bernard McMonigle
Chief Administrative Law Judge
7