State of California (Department of Personnel Administration) (PERB 2130S)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
CALIFORNIA CORRECTIONAL PEACE
OFFICERS ASSOCIATION,
Charging Party,
V.
STATE OF CALIFORNIA (DEPARTMENT OF
PERSONNEL ADMINISTRATION),
Respondent.
Case No. SA-CE-1621-S
PERB Decision No. 2130-S
September 20, 2010
Appearance: Carroll, Burdick & McDonough by Gregg McLean Adam and Jonathan Yank,
Attorneys, for California Correctional Peace Officers Association.
Before Dowdin Calvillo, Chair; McKeag and Wesley, Members.
DECISION
DOWD IN CALVILLO, Chair: This case is before the Public Employment Relations
Board (PERB or Board) on exceptions filed by the California Correctional Peace Officers
Association (CCPOA or Union) to the proposed decision
of
an administrative law judge (ALJ).
The amended complaint alleged, in relevant part, that the State
of
California (Department
of
Personnel Administration) (State or DPA) violated the Ralph C. Dills Act (Dills Act) 1 by:
(1) implementing the terms
of
its last, best and final offer (LBFO) for a three year duration;
and (2) failing to implement the activist release time (ART) provision
of
the LBFO.2 The ALJ
1 The Dills Act is codified at Government Code section 3 512 et seq. Unless otherwise
indicated, all statutory references are to the Government Code.
2 The amended complaint also alleged that DP A violated the Dills Act by failing to
implement the State Vice-Presidents Leave (SVPL) provision of the LBFO. The ALJ ruled
this issue had been resolved by DPA's subsequent implementation of the provision retroactive
to September 18, 2007. CCPOA did not except to this ruling and we therefore do not address
the SVPL allegation in this decision. (PERB Reg. 32300(c); PERB regs. are codified at Cal.
Code Regs., tit. 8, sec. 31001 et seq.)

found that DP A did not implement the LBFO for a three year term and that CCPOA had
waived its right to pursue the ART allegation by entering into a Union Paid Leave (UPL)
Agreement with DP A.
The Board has reviewed the proposed decision and the record in light of CCPOA's
exceptions and supporting brief, and the relevant law. Based on this review, the Board affirms
the ALJ' s dismissal of the amended complaint for the reasons discussed below.
FACTUAL BACKGROUND
CCPOA is the exclusive representative of employees in State Bargaining Unit 6.
CCPOA and the State were parties to a memorandum of understanding (MOU) with a term of
July 1, 2001 through July 2, 2006.
Section 2.12 of the MOU, entitled "Union Activity Related to Collective Bargaining,"
stated, in relevant part:
The State shall annually provide the amount of release time to
CCPOA for activity related to collective bargaining pursuant to
the parties' agreement of December 11, 2001.
CCPOA's Chief of Labor Relations, Stephen Weiss, testified that approximately 500
CCPOA members used release time under this section, commonly referred to as ART, to attend
the Union's annual two-day training conference.
Negotiations for a successor MOU began in May or June 2006. On May 10, 2007,
DPA filed with PERB a request for impasse determination and appointment of a mediator.
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On August 22, 2007, CCPOA withdrew from mediation. Later that day, DPA
submitted a voluminous package offer to the Union. DPA proposed to "rollover" section 2.12,
the ART provision, without language changes. 	Proposed section 15.01, Salaries, included a
five percent general salary increase for all Bargaining Unit 6 employees on July 1, 2007,
2

July 1, 2008, and July 1, 2009. Proposed section 27.03, Term of MOU, provided for a three
year term effective upon ratification of the MOU by CCPOA membership and the Legislature,
with the MOU to expire on June 30, 2010.
On September 12, 2007, DPA Deputy Director of Labor Relations Julie Chapman
(Chapman) informed CCPOA by letter that the State had received the Union's rejection of the
August 22 offer. Enclosed with the letter were modifications to some of the proposals in the
August 22 offer. 	Chapman's letter stated that these modified proposals, along with any section
of the August 22 offer not replaced with one of the enclosed proposals, constituted the State's
LBFO. 	Sections 15.01, Salaries, and 27.03, Term of MOU, were included in the enclosed
proposals; the language of each remained the same as in the August 22 offer. Section 2.12,
ART, was not listed among the September 12 modifications.
On September 17, 2007, CCPOA rejected the State's LBFO. 	On September 18,
Chapman advised the Union by letter that:
[p ]ursuant to the Ralph C. Dills Act, Government Code Section
3517.8, the State is exercising its right to implement all three
years of its last, best and final offer as indicated in the attached
table and subject to Legislative funding of expenditures.
The table/implementation plan stated at the top of each page: "Only the items listed
below from the State's LBF are being implemented." Section 15.01, Salaries, was included in
the table/plan; sections 2.12, ART, and 27.03, Term of MOU, were not on the table/plan.
DPA's September 18, 2007 letter also stated, "In the absence of a contract, union paid
leave, among other things, no longer exists as the parties have previously understood it."
Chapman testified that any paid union leave provisions calling for CCPOA to reimburse the
State required an agreement with the Union and therefore could not be imposed unilaterally by
3

the State as part of its LBFO implementation.3 Her September 18 letter informed CCPOA that
if the Union executive leadership wanted to remain off work outside an institution or facility,
CCPOA was to contact Chapman by September 25 "to discuss how this could be accomplished
extra-contractually."
Upon receiving the September 18, 2007 letter, CCPOA's outside counsel, Gregg
McLean Adam (McLean Adam), immediately contacted Chapman to discuss the continued
release of CCPOA's executive leadership for union activity. During the ensuing negotiations
with DP A, which eventually led to the UPL Agreement, McLean Adam proposed the following
language be included in the agreement:
CCPOA agrees that for the duration of this agreement it will not
file any federal or state litigation against the State employer,
CDCR or DPA or any representative thereof, alleging that the
ending ofVPL, RTB, Chapter Presidents' Release Day and UPL
through the implementation of the LBFO was designed to
interfere with or retaliate for CCPOA's associational activity.
CCPOA will retain the right to continue to prosecute its Dills Act
claims about the ending of VPL, RTB, Chapter Presidents'
Release Day and UPL in front of PERB.
The final UPL Agreement signed by representatives of CCPOA and DP A requires
CCPOA to reimburse the State for the total compensation cost of both long and short term
union leave for CCPOA officials and members. Paragraph 21 of the agreement provides:
CCPOA waives any claim that the State violated any provision of
law, contract, or past practice by requiring the union to reimburse
the State for the release of union members or by implementing
the State's LBFO that ended various forms of union leave.
Nothing in this agreement shall be construed as an admission by
either party or used as evidence in any pending action as of the
date of this agreement. If this agreement is ended by the State
within 180 days of the execution of this agreement this waiver
will also end (unless the State's basis for ending the agreement is
CCPOA's failure to timely pay amounts owing under this
There were multiple forms of paid union leave in the expired MOU, some paid by the
State and others paid by the Union.
4

agreement); if, however, this agreement lasts at least 180 days,
then the waiver will become permanent.
McLean Adam testified that, by agreeing to paragraph 21, CCPOA did not intend to
waive any Dills Act claims then pending at PERB but only future litigation in federal or state
court alleging that the State's elimination
of
union leave constituted retaliation for CCPOA
members' exercise
of
their constitutional right
of
association.
On December 7, 2007, PERB' s Office
of
the General Counsel issued a complaint in this
case which alleged, in relevant part, that DP A violated the Dills Act by "implementing terms
and conditions for a three-year duration. "4 On December 13, DP A withdrew the second and
third years
of
its economic proposals from the implemented terms
of
the LBFO.
On March 17, 2008, CCPOA moved to amend the complaint to add an allegation that
DPA violated the Dills Act by failing to implement the ART provision
of
the LBFO. On
April 16, the General Counsel issued an amended complaint incorporating this allegation.
Meanwhile, on April 11, 2008, McLean Adam requested by letter that DP A return to
the bargaining table and negotiate both economic and non-economic items ahead
of
the state
budget. McLean Adam referred to the State's withdrawal
of
its second and third year
economic proposals on December 13, 2007, and asserted that the existing one year economic
proposal expired at the end
of
Fiscal Year 2007-2008.
On May 7, 2008, DPA invited CCPOA to "sunshine" a proposal for economic terms of
a new MOU on May 22. On May 8, McLean Adam replied that CCPOA wished to bargain a
new MOU and would use the offered sunshine date. The parties stipulated that CCPOA did
On this same date, the General Counsel dismissed all of the allegations in the charge
except for the allegations that implementation of the LBFO for three years and elimination of
SVPL violated the Dills Act. The Board affirmed the partial dismissal in State
of
California
(Department
of
Personnel Administration) (2009) PERB Decision No. 2017-S.
5

not sunshine a proposal on May 22, 2008, or on any date thereafter, and that the parties have
not resumed bargaining for a successor MOU.
ALJ' s Proposed Decision
Regarding the allegation that the State unlawfully implemented its LBFO for a three
year term, the ALJ found no Dills Act violation because: (1) the State did not implement
LBFO section 27.03, Term of MOU; and (2) the Legislature did not authorize expenditures for
the salary increases in each of the three years of the LBFO. As for the ART issue, the ALJ
found that elimination of ART was not "reasonably comprehended" within the LBFO, which
proposed to rollover section 2.12 of the MOU without changes. Nonetheless, the ALJ found
that CCPOA waived any right to continued ART leave by signing the UPL Agreement in
November 2007. On these grounds, the ALJ dismissed the amended complaint and underlying
unfair practice charge.
CCPOA's Exceptions
CCPOA excepts to the ALJ's conclusions on both allegations. 	CCPOA argues that an
employer commits an unfair practice by unilaterally imposing terms and conditions of
employment for a set duration and that DPA in fact imposed its LBFO for a three year term
because it did not withdraw implementation of the non-economic terms for years two and three
of the LBFO. Regarding ART, CCPOA contends that the State was required to implement
section 2.12 of its LBFO because DPA did not propose elimination of that type of leave during
bargaining. CCPOA further asserts that the UPL Agree.ment did not waive CCPOA's right to
continue to pursue Dills Act claims over elimination of union leave that were pending at the
time the agreement was signed in November 2007.
6

DISCUSSION
"Once impasse is reached either party may refuse to negotiate further and the employer
is free to implement changes reasonably comprehended within its last, best and final offer.
However, impasse suspends the parties' obligation to bargain only until changed circumstances
indicate that an agreement may be possible." (Rowland Unified School District (1994) PERB
Decision No. 1053.)
These basic principles are codified in section 3517.8, subdivision (b) of the Dills Act,
which states in full:
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 circumstances change, and does
not waive rights that the recognized employee organization has
under this chapter.
The amended complaint alleged that DP A acted contrary to this subdivision, and
therefore violated Dills Act section 3519, subdivision (c),5 by: (1) implementing its LBFO for
a three year term; and (2) failing to implement section 2.12, the ART provision of the LBFO.
We address each of these allegations in turn.
5 Dills Act section 3519, subdivision (c) states in full: 	"It shall be unlawful for the state
to ... [r]efuse or fail to meet and confer in good faith with a recognized employee
organization."
7

1. 	Implementation of LBFO for Three Year Term
CCPOA contends in its exceptions that implementation of a LBFO for a set duration is
per se an unfair practice. In support of this contention, CCPOA relies upon Roosevelt
Memorial Medical Center (2006) 348 NLRB 1016. In that case, the employer implemented a
two year term of agreement provision contained in its LBFO. (Id. at p. l 033.) The National
Labor Relations Board (NLRB) found that by implementing this provision, the employer"in
effect attempted to place the other imposed conditions beyond the reach of collective
bargaining for that period." (Id. at p. 1017.) Because implementation of the term of agreement
provision impaired the union's statutory right to bargain should the impasse be broken during
the term, the NLRB held that the employer violated the National Labor Relations Act
(NLRA). 6 (Ibid.)
PERB addressed this same issue in Rowland Unified School District, supra. There, the
school district bargained to impasse with its teachers' union and then implemented its LBFO,
which contained the following provision:
"Except where otherwise specifically indicated, the terms and
conditions of employment shall be effective July 1, 1992 through
August 31, 1993, and from year to year thereafter unless and until
modified pursuant to the provisions of the Educational
Employment Relations Act (EERA). [7l This implementation
resolves negotiations affecting the 1992-93 school year except as
follows: [The Association] and the District may select up to two
subjects for meeting and negotiating in connection with the 1992-
93 school year."
6 The NLRA is codified at 29 U.S.C. section 151 et seq.
7 EERA is codified at Government Code section 3540 et seq.
8

Consistent with the doctrine that the parties' bargaining rights and obligations continue
after implementation upon impasse, the Board observed:
an employer may not, following impasse, unilaterally impose a
waiver/limitation of an exclusive representative's statutory right to
bargain. Such a waiver/limitation of the statutory right to bargain
may only occur within the context of a mutually agreed collective
bcu gaiuiug ag1 c;c;111c;11t.
The Board then held that an employer may lawfully implement a term of agreement
provision contained in its LBFO because such a provision, standing alone, does not act as a
waiver of the union's bargaining right for the specified period. The Board did, however, find
that the limitation of bargaining to two subjects during the specified period violated EERA.
This case is easily distinguishable from Roosevelt Memorial Medical Center, supra,
and Rowland Unified School District, supra, because DPA did not implement the term of
agreement provision contained in its LBFO. 	DPA's September 18, 2007 letter to CCPOA
stated that "the State is exercising its right to implement all three years of its last, best and final
offer as indicated in the attached table and subject to Legislative funding of expenditures."
LBFO section 27.03, Term of MOU, which would have made the MOU effective from the date
ofratification until June 30, 2010, was not included in the table/implementation plan attached
to the letter. Thus, DPA did not implement the LBFO's term of agreement provision.
CCPOA argues that the above quoted language from DPA's letter indicates that DPA
implemented its LBFO for a three year term notwithstanding the omission of section 27.03
from the implementation plan. Chapman testified she intended the quoted language to mean
DPA would implement LBFO provisions in the attached table that provided for wage or benefit
increases at certain times during the proposed three year term if the Legislature approved the
9

expenditures.8 The Legislature did not authorize funding for the first year of any of these
proposals and the parties stipulated that DP A withdrew the economic proposals for the second
and third years of its LBFO on December 17, 2007.9 Thus, the record establishes that DPA
never implemented any LBFO term that depended upon a three year MOU duration.
CCPOA also contends that DP A implemented the LBFO for a three year term because
it did not withdraw the second and third year non-economic proposals from the implementation
plan. However, nothing in the record indicates that DPA intended to implement non-economic
proposals for any specific period of time. Therefore, DPA's failure to withdraw those
proposals from its implementation plan does not indicate DP A implemented the LBFO for a
three year period.
Nevertheless, even if DPA did implement its LBFO for a three year term, the record
does not establish that implementation had any effect on CCPOA's right to bargain should
impasse be broken. Unlike the term of agreement provision in Rowland Unified School
District, supra, LBFO section 27.03 did not limit the subjects over which the parties could
negotiate during the term of the implemented proposals. Moreover, DPA did not indicate that
it would refuse to bargain over any negotiable subject during the term of the LBFO. 	Indeed,
8 The only LBFO provisions in the table/implementation plan that fall within this
category are: 	Section 13.01, Health Benefit Plan; Section 14.04, Uniform/Uniform
Accessories Replacement Allowance; Section 15.01, Salaries; Section 15.02, Recruitment
Incentive; Section 15.08, Night Shift Differential/Weekend Differential; and Section 15.13,
Recruitment - Avenal, Ironwood, Chuckawalla Valley, Calipatria, and Centinela State Prisons.
9 DP A's withdrawal of its second and third year economic proposals in response to the
amended complaint was apparently based on the premise that implementation of a LBFO for
more than a one year term is an unfair practice. This premise appears to originate from
Rowland Unified School District, supra, in which the Board found implementation of a one
year term of agreement lawful. The Board's holding, however, was not based on the length of
the term but rather on the effect the implemented term provision had on the union's bargaining
rights. Hence, the inquiry in a case involving implementation upon impasse of a term of
agreement provision is whether the provision has the effect of waiving or limiting the union's
statutory right to bargain.

DPA responded to CCPOA's offer to resume successor MOU negotiations by inviting the
Union to sunshine its economic proposals. Consequently, assuming that DP A implemented its
LBFO for a three year term, implementation did not waive or limit CCPOA's right to bargain
should impasse be broken during that period.
Because DP A neither implemented its LBFO for a three year term ( or any other specific
term), nor unilaterally waived or limited CCPOA's statutory right to bargain, we affirm
dismissal of the allegation that DP A unlawfully implemented its LBFO for a three year term.
2. 	Failure to Implement ART Provision
a. 	Waiver of ART Allegation
As noted above, the ALJ concluded that CCPOA waived any "right to continued ART
leave" by signing the UPL Agreement in November 2007. CCPOA contends that the UPL
Agreement did not waive any pending Dills Act claims regarding DPA's elimination of union
leave but only waived CCPOA's right to pursue litigation alleging that DPA's action was taken
in retaliation for CCPOA members' exercise of constitutional rights. 	For the following
reasons, we conclude that CCPOA waived its right to pursue the ART allegation.
Dills Act section 3514.5, subdivision (a) grants any employee organization the right to
file an unfair practice charge. It is undisputed that CCPOA is an "employee organization" as
defined in section 3513, subdivision (a) of the Dills Act. Thus, CCPOA has a statutory right to
file a charge alleging that DPA's failure to implement the ART provision of the LBFO
constituted an unfair practice.
A union's waiver of a statutory right must be "clear and unmistakable" and will not be
lightly inferred. (Placentia Unified School District (1986) PERB Decision No. 595; Amador
Valley Joint Union High School District (1978) PERB Decision No. 74.) Where contract
language constitutes a clear and unmistakable waiver of rights, the waiver will be given effect
11

without consideration of extrinsic evidence such as bargaining history. (Amador Valley Joint
Union High School District, supra; Marysville Joint Unified School District (1983) PERB
Decision No. 314.)
DP A asserts that the following language in Paragraph 21 of the UPL Agreement
constitutes a waiver of CCPOA's right to pursue the ART allegation in the amended complaint:
CCPOA waives any claim that the State violated any provision of
law, contract, or past practice by requiring the union to reimburse
the State for the release of union members or by implementing
the State's LBFO that ended various forms of union leave.
Nothing in this agreement shall be construed as an admission by
either party or used as evidence in any pending action as of the
date of this agreement.
We agree that, by executing the UPL Agreement containing this language, CCPOA
waived its right to file an unfair practice charge over DPA's failure to implement the ART
provision of the LBFO. 1° CCPOA contends that the waiver does not apply to the ART
allegation because this charge was pending at the time the UPL Agreement was executed in
November 2007. However, CCPOA did not amend the complaint to add the ART allegation
until March 2008. Because the ART allegation was not pending at the time the agreement was
executed, it is subject to the waiver provision of the UPL Agreement and must be dismissed.
b. 	Failure to Implement ART Provision ofLBFO
Even if CCPOA had not waived its right to pursue the ART allegation, we would
dismiss the allegation nonetheless because DPA's failure to implement the ART provision did
not violate the Dills Act.
v Because we find the plain language of Paragraph 21 constitutes a clear and
unmistakable waiver, we need not consider McLean Adam's testimony about the bargaining
history of the UPL Agreement. (See Barstow Unified School District ( 1996) PERB Decision
No. 1138 [PERB may only examine bargaining history when contract language is ambiguous].)
12

In State of California (Department of Personnel Administration) (2008) PERB Decision
No. 1985-S, the Board addressed DPA's failure to implement the fair share fee provision of the
same September 12, 2007 LBFO at issue in this case. Relying on Dills Act section 3517.8,
subdivision (b ), which allows the State to "implement any or all of its last, best, and final
offer," the Board held that "the State is not required to implement the entire LBFO." The
Board then affirmed dismissal of CCPOA's allegation that DPA violated the Dills Act by
failing to implement the fair share fee provision. The Board reached this conclusion even
though DPA's proposal was merely to rollover the fair share fee provision from the expired
MOU.
The facts in this case are virtually identical to those in State of California (Department
of Personnel Administration), supra, PERB Decision No. 1985-S; the only difference, that the
prior case involved a fair share fee provision while this one involves a union leave provision, is
without legal significance. Accordingly, we hold that DPA did not violate the Dills Act by
failing to implement the ART provision of the LBFO upon impasse.
Without addressing the Board's prior decision on this issue, 11 CCPOA argues that
PERB should follow case law under EERA in this case. Specifically, CCPOA relies upon
Laguna Salada Union School District (1995) PERB Decision No. 1103, in which the Board
observed that a post-impasse change cannot be "reasonably comprehended" within the
employer's LBFO if it was not discussed during negotiations and is less than the status quo.
According to CCPOA, elimination of ART was not reasonably comprehended within DP A's
LBFO because the parties never discussed elimination of ART during negotiations and
elimination of ART would be less than the status quo.
State of California (Department of Personnel Administration), supra, PERB Decision
No. 1985-S issued on November 20, 2008. The hearing in this matter did not take place until
October 13 and 14, 2009.
13

As the Board noted in State of California (Department of Personnel Administration)
(2009) PERB Decision No. 2017-S, there appears to be tension between the "reasonably
comprehended" requirement in EERA cases and the language of the Dills Act when the State
has not implemented a provision of its LBFO. Elimination of a benefit that the State proposed
to rollover unchanged from the prior MOU appears to fall under the prohibition on
implementing changes that are less than the status quo. Yet, as noted, PERB has held that
section 3 517 .8, subdivision (b) does not require the State to implement the entire LBFO.
We resolve this apparent tension by holding that the "reasonably comprehended"
requirement only applies to provisions of the LBFO that are actually implemented, as was the
case in Laguna Salada Union School District, supra. To apply the "reasonably
comprehended" requirement to LBFO provisions that were not implemented, as CCPOA urges,
would eviscerate the plain language of section 3517.8, subdivision (b) granting DPA the
authority to implement "any or all" of its LBFO.
We find support for this harmonization of PERB case law with the language of the Dills
Act in two places. First, the legislative history of Senate Bill (SB) 683, which added section
3517.8 to the Dills Act, supports PERB's interpretation of the statutory language. 	Early
versions of SB 683 required DP A to submit the entire LBFO to the Legislature upon impasse.
(Sen. Amend. to Sen. Bill No. 683 (1999-2000 Reg. Sess.) April 14, 1999.) Upon approval by
the Legislature, DPA would be required to implement the entire offer. (Ibid.) However, the
bill was later amended to include the language currently found in section 3517.8,
subdivision (b), which provides that DPA may implement "any or all" of the LBFO and that
only provisions which require expenditure of funds or conflict with existing statutes are subject
to legislative approval. 	(Assem. Amend. to Sen. Bill No. 683 (1999-2000 Reg. Sess.)
August 30, 2000.) While the legislative history is silent about the reason for this change, the
14

amendment nonetheless indicates the Legislature did not intend to require DPA to implement
the entire LBFO upon impasse.
Second, despite CCPOA' s claim that interpreting the Dills Act to allow implementation
of
some but not all
of
the LBFO "flies in the face
of
all pertinent precedent," we find support
for PERB's interpretation
of
section 3517.8, subdivision (b) in both PERB and NLRB case
law. 	In Charter Oak Unified School District (1991) PERB Decision No. 873, the Board stated
that "when an employer reaches impasse in the entire negotiations, an employer may
implement some or all
of
its proposals and need not place all
of
them into effect." The NLRB
has similarly held that an employer may implement "some or all
of
its last contract offer" upon
impasse. (Lihli Fashions Corp. (1995) 317 NLRB 163, 165; Sage Development
Co.
(1991)
301 NLRB 1173, 1175-1176.)
Nonetheless, PERB and NLRB precedent also counsel against interpreting Dills Act
section 3517.8, subdivision (b) to grant DPA absolute discretion as to which LBFO provisions
it may implement upon impasse. As discussed above, an employer may not implement a
provision that waives or limits the union's right to bargain over a particular subject for a
specified period
of
time. (Rowland Unified School District, supra.) The NLRB has held that
an employer may not implement a provision that grants the employer authority to unilaterally
change wages without further bargaining. (McClatchy Newspapers, Inc. (1996) 321 NLRB
1386, 1390-1391, enforced McClatchy Newspapers, Inc.
v.
National Labor Relations Bd. (D.C.
Cir 1997) 131 F.3d 1026.) In each case, the respective board concluded that the employer's
unilateral implementation
of
the provision undermined fundamental principles of collective
bargaining.
We find no such harm to CCPOA's bargaining rights here. 	DPA's failure to implement
the ART provision did not preclude CCPOA from bargaining over any term or condition of
15

employment for a specific period nor did it allow DP A to unilaterally change any term or
condition without bargaining. Indeed, CCPOA and DPA's successful negotiation
of
the UPL
Agreement demonstrates that CCPOA's ability to bargain over union leave was not harmed in
any way by DP
A's
failure to implement the ART provision.
In sum, we conclude that Dills Act section 3517 .8, subdivision (b) grants the State
employer authority to implement "any or all"
of
its LBFO, provided the implementation does
not waive or limit the bargaining rights
of
the recognized employee organization. Because we
find no such waiver or limitation
of
CCPOA's rights here, we conclude DPA acted pursuant to
its statutory authority when it did not implement section 2.12
of
the LBFO. This conclusion
provides an alternative ground for dismissal
of
the allegation that DP A violated the Dills Act
by failing to implement the ART provision
of
the LBFO.
ORDER
The amended complaint and underlying unfair practice charge in Case No.
SA-CE-1621-S are hereby DISMISSED.
Members McKeag and Wesley joined in this Decision.
16