State of California (Department of Corrections and Rehabilitation, Ventura Youth Correctional Facility) (PERB 2131S)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
CALIFORNIA CORRECTIONAL PEACE
OFFICERS ASSOCIATION,
Charging Party,
V.
STATE OF CALIFORNIA (DEPARTMENT OF
CORRECTIONS AND REHABILITATION,
VENTURA YOUTH CORRECTIONAL
FACILITY),
Respondent.
Case No. SA-CE-1798-S
PERB Decision No. 2131-S
September 21, 2010
Appearances: Leanne M. Kent, Attorney, for California Correctional Peace Officers
Association; State of California (Department of Personnel Administration) by Ronald R.
Pearson, Labor Relations Counsel, for State of California (Department of Corrections and
Rehabilitation, Ventura Youth Correctional Facility).
Before Dowdin Calvillo, Chair; McKeag 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
or Union) of a Board agent's dismissal of its unfair practice charge. The charge alleged that the
State of California (Department of Corrections and Rehabilitation, Ventura Youth Correctional
Facility) (State or CDCR) violated the Ralph C. Dills Act (Dills Act)1 when it unilaterally
changed the training policy. The Board agent found the unfair practice charge was untimely
filed and therefore dismissed the charge.
1 The Dills Act is codified at Government Code section 3 512 et seq. Unless otherwise
noted, all statutory references are to the Government Code.

The Board has reviewed the dismissal and the record in light
of
CCPOA's appeal, the
State's response to the appeal and the relevant law. Based on this review, the Board affirms
the dismissal
of
the unfair practice charge for the reasons discussed below.
BACKGROUND
On August 19, 2008, Joe Shofner (Shofner), treatment team supervisor at CDCR's
Ventura Youth Correctional Facility (VYCF), sent an email to "All VYCF Users" regarding
National Incident Management System (NIMS) training. The email stated that, "all employees
who have not completed the required [NIMS] training will now have 60 days to go online and
read the materials and take the tests and print the certificates." The email did not indicate
where employees were to complete the on-line training. Two documents were attached to the
email, a summary
of
the NIMS training requirements and an on-the-job training (OJT) form.
The email instructed employees to submit the OJT form after completing the course. CDCR
uses the OJT form to ensure that employees receive credit for required training.
On November 14, 2008, CCPOA Chapter President Daryl Lee (Lee) learned that
Shofner had instructed a Bargaining Unit 6 employee2 to complete the NIMS training at home
"when he heard a Unit 6 member complain in passing about having to go home and do more
work."
The charge alleges that NIMS training had previously been conducted during work
hours. Lee filed a grievance challenging the home training requirement on November 19,
2008. CCPOA filed this unfair practice charge
v1ith
PERB
by
facsimile on
I\,1ay
12, 2009.3
2 CCPOA is the exclusive representative of employees in State Bargaining Unit 6.
3 PERB Regulation 32135 sets forth the requirements for filing documents by facsimile
transmission. 	(PERB regs. are codified at Cal. Code Regs., tit. 8, § 31001 et seq.)
2

The Board agent dismissed the charge as untimely filed. 	Even
if
timely, the Board
agent concluded the charge did not demonstrate that the conduct was more than an isolated
event, rather than a change in policy, sufficient to establish a prima facie case
of
an unlawful
unilateral change.
On appeal, CCPOA contends the Board agent erred in finding the charge untimely
filed. 	CCPOA asserts it learned on November 14, 2008, that an employee was required to
complete NIMS training at home. CCPOA argues this date is within six months
of
the filing
of
the charge.
CCPOA also disputes the Board agent's finding that this was an isolated incident rather
than a change in policy. Although only one employee was instructed to complete the training
at home, CCPOA argues the training is mandatory for all employees.
The State argues the Board agent correctly found both that the charge was untimely
filed and, on the merits, the charge alleged facts demonstrating only an isolated event, not a
change in policy.
DISCUSSION
Statute
of
Limitations
Dills Act section 3514.S(a)(l) 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 C-.ollege
District (1996) PERB Decision No. 1177.) A charging party bears the burden
of
demonstrating that the charge is timely filed. 	(Tehachapi Unified School District (1993) PERB
Decision No. 1024; State
of
California (Department
of
Insurance) (1997) PERB Decision
No. 1197-S.)
3

CCPOA filed its charge by facsimile on May 12, 2009. Accordingly, any alleged
unlawful conduct must have occurred within six months prior to that date, in this case on or
after November 12, 2008. 	The charge alleged that Lee learned on November 14, 2008, that an
employee was instructed to complete the on-line training at home. As this date falls within six
months
of
May 12, 2009, the charge was timely filed.
Although the Board agent acknowledged that the Union alleged facts that it first
obtained knowledge
of
the alleged policy change within the limitations period, the Board agent
erred in finding that the Union must also establish when the State implemented the change.
Unilateral Change
In determining whether a party has violated Dills Act section 3 519(c), PERB utilizes
either the "per se" or "totality
of
the conduct" test, depending on the specific conduct involved
and the effect
of
such conduct on the negotiating process. (Stockton Unified School District
(1980) PERB Decision No. 143.) Unilateral changes are considered "per
se'?
violations
if
certain criteria are met. Those criteria are: (1) the employer breached or altered the parties'
written agreement or its own established past practice; (2) such action was taken without
giving the other party notice or an opportunity to bargain over the change; (3) the change was
not merely an isolated breach
of
the contract, but amounts to a change in policy (i.e., it has a
generalized effect or continuing impact upon bargaining unit members' terms and conditions
of
employment); and (4) the change in policy concerns a matter within the scope
of
representation. 	(Vernon Fire Fighters
v.
City
of
Vernon (1980) 107 Cal.App.3d 802; Walnut
Valley Unified School District (1981) PERB Decision No. 160; San Joaquin County Employees
Assn.
v.
City
of
Stockton (1984) 161 Cal.App.3d 813; Grant Joint Union High School District
(1982) PERB Decision No. 196.)
4

It is undisputed that training is a matter within the scope
of
representation (Healdsburg
Union High School District and Healdsburg Union School District/San Mateo City School
District (1984) PERB Decision No. 375), and that the State did not provide CCPOA with
notice and an opportunity to bargain a change in the training policy. Although the charge does
not provide evidence
of
a written agreement addressing training during work hours,4 the OJT
form suggests there is a policy or practice that training is done during work hours. However,
the conduct at issue does not demonstrate an unlawful unilateral change
if
it is merely an
isolated breach that does not have a generalized effect or continuing impact on terms and
conditions
of
employment.
Generally, the number
of
employees affected by a change does not alone determine
whether the change has a generalized effect or continuing impact. (Jamestown Elementary
School District (1990) PERB Decision No. 795.) PERB also considers whether the employer
believes or acts as
if
it has a right to take the action without bargaining. (County
of
Riverside
(2003) PERB Decision No. 1577-M; Hacienda La Puente Unified School District (1997)
PERB Decision No. 1186 [employer belief contract allowed unilateral shift change]; Fall River
Joint Unified School District (1998) PERB Decision No. 1259 [intention that mandatory
transfer policy applied to all employees]; Lake Elsinore School District (1988) PERB Decision
No. 666 [one-time change in hours did not demonstrate intended on-going effect].) In Grant
Joint Union High School District, supra, PERB Decision No. 196, the Board explained:
This is not to say that every breach
of
contract also violates the
Act. Such a breach must amount to a change of policy, not
merely a default in a contractual obligation, before it constitutes a
violation of the duty to bargain. This distinction is crucial. A
change of policy has, by definition, a generalized effect or
continuing impact upon the terms and conditions of employment
4 The parties were operating under the terms of the last, best and final offer
implemented on September 18, 2007.
5

of
bargaining unit members. 	On the other hand, when an
employer unilaterally breaches an agreement without instituting a
new policy
of
general application or continuing effect, its
conduct, though remediable through the courts or arbitration,
does not violate the Act.
The charge alleges that a VYCF supervisor instructed a single employee to complete
the on-line training at home. There are no facts the employee actually performed the training
at home. Further, there are no facts that CDCR similarly directed other employees to complete
the NIMS training at home. CCPOA contends the August 19, 2008 email, reminding all staff
of
the NIMS training obligation, establishes the existence
of
the at-home training policy. The
Union states on appeal:
CCPOA provided evidence that this policy applies to more than
one member
of
the Bargaining Unit by providing the email sent
out by the VYCF Treatment Team supervisor. The email in
question does not articulate that NIMS training is to be completed
off duty, however, at least one officer was ordered to complete
the training off duty.
The email demonstrates only the requirement that all staff complete the training.
Nothing in the email indicates where the training is to be done. As written, the charge simply
speculates that other employees were required to perform the training at home. PERB
Regulation 32615(a)(5) requires 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.)5
5 The grievance filed by Lee states that "numerous" employees were directed to
complete the training at home. 	Other than the broad statement, the grievance does not identify
or give any indication which employees were affected. However, the facts alleged in the
charge statement, and repeated on appeal, specifically reference that only a single employee
was directed to train at home. A charging party must allege sufficient facts to state a prima
facie case. PERB will not rely on a charging party's conjecture.
6

The charge does not allege facts that demonstrates CDCR believed or acted as
if
it had
a right to direct employees to complete training outside duty hours. There is no indication
of
continued application
of
the at-home training requirement. As filed, the charge demonstrates
only an isolated incident and not a change in policy. Thus, the charge does not establish a
prima facie case
of
an unlawful unilateral change.
ORDER
The unfair practice charge in Case No. SA-CE-1798-S is hereby DISMISSED
WITHOUT LEAVE TO AMEND.
Chair Dowdin Calvillo and Member McKeag joined in this Decision.
7