State of California (Department of Corrections and Rehabilitation, Corcoran State Prison) (PERB 2156S)

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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-1783-S
Vv. PERB Decision No. 2156-S
STATE OF CALIFORNIA (DEPARTMENT OF January 19, 2011

CORRECTIONS & REHABILITATION,
CORCORAN STATE PRISON),

Respondent.

Appearances: Suzanne L. Branine, Staff Counsel, for California Correctional Peace Officers
Association; State of California (Department of Personnel Administration) by Heather N.
Bendinelli, Labor Relations Counsel, for State of California (Department of Corrections &
Rehabilitation, Corcoran State Prison).
Before Dowdin Calvillo, Chair; McKeag and Wesley, Members.
DECISION

DOWDIN CALVILLO, Chair: 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, as amended, alleged in relevant part that the State of California (Department of
Corrections & Rehabilitation, Corcoran State Prison) (CDCR) violated the Ralph C. Dills Act
(Dills Act)! by holding a meeting on December 8, 2008 at Corcoran State Prison during which
the bidding status of certain newly created positions was decided. The charge further alleged

that CDCR did not notify CCPOA Chapter President E. Chris Brady (Brady) of the meeting

but acknowledged that other members of the chapter did attend the meeting. The Board agent

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

dismissed the allegation for failure to state a prima facie case that CDCR bypassed the
exclusive representative.2
The Board has reviewed the partial dismissal and the record in light of CCPOA's
appeal, CDCR's response, and the relevant law. Based on this review, the Board finds the
Board agent's partial warning and partial 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.
2
DISCUSSION
On appeal, CCPOA does not challenge the Board agent's dismissal of the bypass
allegation. Instead, CCPOA contends that the Board agent erred by not addressing the
amended charge's interference and unilateral change allegations based on the December 8,
2008 meeting. For the following reasons, we find that these allegations, even when
considered and treated as true, do not cure CCPOA's failure to state a prima facie case.
(Chula Vista Elementary School District (2003) PERB Decision No. 1557.)
1. 	Interference with Brady's Rights
The amended charge alleged that CDCR interfered with Brady's rights as chapter
president by failing to notify him of the December 8, 2008 meeting.3 In order to establish a
prima facie case of unlawful interference under Dills Act section 3519, subdivision (a), the
2 On the same date, PERB' s Office of the General Counsel issued a complaint that
alleged interference, retaliation, refusal to bargain, and unlawful unilateral change by CDCR
based on other events alleged in the amended charge.
3 At various points in its appeal, CCPOA characterizes this allegation as
"discrimination/retaliation." To establish a prima facie case of retaliation in violation of Dills
Act section 3519, subdivision (a), CCPOA must show that CDCR took an adverse employment
action against Brady. (Newark Unified School District (1991) PERB Decision No. 864;
Novato Unified School District (1982) PERB Decision No. 210.) The amended charge alleged
no facts to establish that Brady's lack of prior notice of the December 8, 2008 meeting had an
adverse impact on his employment.

charging party must establish that the respondent's conduct tends to or does result in some
harm to employee rights granted under the Dills Act. (State of California (Department of
Developmental Services) (1983) PERB Decision No. 344-S, citing Carlsbad Unified School
District (1979) PERB Decision No. 89.) The amended charge established that officers of the
Corcoran CCPOA chapter attended the December 8, 2008 meeting. Thus, although CDCR
may not have notified Brady directly, CDCR obviously notified the chapter of the meeting.
The failure of other chapter officers or members to inform Brady of the meeting does not
establish that CDCR's conduct tended to or did interfere with Brady's rights. 	(See City &
County of San Francisco (2009) PERB Decision No. 2075-M [no prima facie case of an unfair
practice by the employer when a union organizer failed to inform local union officials of the
closure of an employee's grievance].) Accordingly, this allegation fails to establish a prima
facie case of unlawful interference.
,...,
L.,, 	Interference with CCPOA's Rights
The amended charge alleged that CDCR interfered with CCPOA's right to choose its
own representatives when Captain R. C. Garcia (Garcia) chose which CCPOA representatives
would attend the December 8, 2008 meeting. The standard for establishing interference with
an employee organization's rights under Dills Act section 3519, subdivision (b) is the same as
that for establishing interference with an employee's rights under subdivision (a) of that same
section. (State of California (Department of Corrections) (1995) PERB Decision No. 1104-S.)
To establish a prima facie case, the charging party must allege facts that establish an unfair
practice. (PERB Regulation 32615(a)(5);4 State of California (Department of Food and
Agriculture) (1994)
CCPOA representatives who attended the meeting "were selected by management and
4 PERB regulations are codified at California Code of Regulations, title 8, section
31001 et seq.
3

summoned to attend the meeting by Captain Garcia." However, the charge alleged no facts
showing that Garcia or any other member of CDCR management chose which CCPOA
representatives attended the meeting. CCPOA's allegation appears to be based on conjecture
that, because the representatives who attended were alleged political opponents of Brady, they
were selected by Garcia, also a political rival of Brady's. CCPOA' s speculation is insufficient
to establish a prima facie case of unlawful interference. (United Teachers-Los Angeles
(Ragsdale) (1992) PERB Decision No. 944.)
3. 	Unilateral Change
The amended charge alleged that CDCR made an unlawful unilateral change when, at
the December 8, 2008 meeting, it established the bidding status of certain newly created
positions without first negotiating the matter with Brady. An employer's unilateral change in
terms and conditions of employment is considered a per se violation of Dills Act section 3 519,
subdivision (c) if: (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 breachof 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 v1ithin the scope of representation. (Walnut Valley Unified School
District (1981) PERB Decision No. 160; Grant Joint Union High School District (1982) PERB
Decision No. 196.)
In its amended charge, CCPOA alleged that "[t]here was a long standing past practice
of local negotiations at CSP-Corcoran between 	and the local CCPOA chapter
president and his designated representatives to determine which positions are in the 70%
biddable portion and which are in the 30% non-biddable management portion of total positions
4

available." However, the charge alleged no facts to establish that Brady or any other CCPOA
chapter representative, at Corcoran or any other institution, had ever negotiated a 70/30 split
with institution management. Thus, even if the December 8, 2008 meeting did result in a final
determination of the 70/30 split, the charge failed to show a change in past practice by CDCR.
Accordingly, CCPOA has failed to establish a prima facie case of an unlawful unilateral
change.
ORDER
The partial dismissal of the unfair practice charge in Case No. SA-CE-1783-S is hereby
AFFIRMED.
Members McKeag and Wesley joined in this Decision ..
5

STATE
OF
CALIFORNIA 	ARNOLD SCHWARZENEGGER, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
F
Sacramento Regional Office
1031
18th Street
Sacramento, CA 95811-4124
Telephone: (916) 327-8383
Fax: (916) 327-6377
F
September 23, 2010
Suzanne L. Branine, Staff Legal Counsel
California Correctional Peace Officers Association
755 Riverpoint Drive, Suite 200
West Sacramento, CA 95605-1634
Re: 	California Correctional Peace Officers Association
v.
State
of
California (Department
of
Corrections & Rehabilitation, Corcoran State Prison)
Unfair Practice Charge No. SA-CE-1783-S
PARTIAL DISMISSAL
Dear Ms. Branine:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on April
1,
2009. The California Correctional Peace Officers
Association (CCPOA or Charging Party) alleges that the State
of
California (Department
of
Corrections & Rehabilitation, Corcoran State Prison) (CDCR or Respondent) violated
the
Ralph C. Dills Act (Dills Act or Act) 1 by interfering with employees' and CCPOA's rights,
discriminating against a CCPOA officer, refusing to bargain with CCPOA, bypassing CCPOA,
and implementing unilateral changes at California State Prison Corcoran (CSP-Corcoran).
Charging Party was informed in the attached Partial Warning Letter dated July 30, 2010
(Warning Letter), 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 on or before August 12, 2010, the allegations would be dismissed.
On August 10, 2010, CCPOA filed a First Amended Charge with PERB.
Discussion
In relevant part, the Warning Letter informed you that the allegations with respect to a
December 8, 2008 meeting held by Captain Garcia, concerning new and soon-to-be-activated
The Dills Act is codified at Government Code section 3512 et seq. PERB Regulations
are codified at California Code of Regulations, title 8, section 31001 et seq. The text
of
the
Dills Act and PERB Regulations may be found at www.perb.ca.gov.

SA-CE-1783-S
September 23, 2010
Page 2
Health Care Access positions, did not state a prima facie violation under a bypass theory.2
Citing applicable case law, the Warning Letter concluded that CCPOA had not established that
Captain Garcia or CDCR attempted to undermine or derogate CCPOA's exclusive authority to
represent unit members. (Walnut Valley Unified School District (1981) PERB Decision
No. 160; Muroc Unfjzed School District (1978) PERB Decision No. 80.)
The First Amended Charge alleges that CSP-Corcoran Personnel Assignment Lieutenant
Pearson was briefly present at the December
8,
2008 meeting
in
question. Pearson was therelong enough to ascertain that the discussion concerned the "70/30" split
of
the Health
CareAccess positions, but he did not actually witness or hear the discussion. Later in the day,
Pearson was informed
of
the decision that had been made as to which positions were
"biddable" and which were management, and he was given a list showing the designation
of
the positions. Pearson hand-wrote the words, "This is what they did," on the list, based
on
his
understanding that the split was based on discussions at the earlier meeting.3
The First Amended Charge does not allege, however, that anyone present at the meeting told
Pearson
that
the list derived from any discussions or decisions occurring at the meeting earlier
in the day on December 8, 2008.4 CCPOA also states in the First Amended Charge that theCCPOA chapter president at CSP-Corcoran has been unable to learn from any participant
whether the CCPOA representatives present for the meeting were simply informed
of
a
decision or whether negotiations took place.
The employer violates the duty to bargain in good faith when it bypasses the exclusive
representative to negotiate directly with employees over matters within the scope
of
representation. (Walnut Valley Unified School District, supra, PERB Decision No. 160.)
However, once a policy has been established by lawful means, an employer has the right to
take necessary actions, including consulting with employees, to implement the policy.	
(Ibid)
To establish that an employer has unlawfully bypassed the union, the charging party mustdemonstrate that the employer dealt directly with its employees (1) to create a new policy
of
general application, or (2) to obtain a waiver or modification
of
existing policies
applicabktothose employees. (Ibid.) Under State
of
California (Department
of
Personnel Administration)
(2009) PERB Decision No. 2078-S, no violation will be found where a charge fails to establish
that the employer asked employees to bargain over or accept proposals; or threatened
The First Amended Charge no longer alleges a violation
of
Government Code section
3519(d), and no longer names "Does 1-100" as Respondents in this matter. 	Thus, those
allegations are deemed withdrawn and are not addressed by this letter.
3 A copy of the list, including Pearson's hand-written notation, is provided with the
First Amended Charge.
4 CCPOA acknowledges that the State's position is the December 8, 2008 meeting was
"informational" only.

SA-CE-1783-S
September 23, 2010
Page 3
employees with force
or
reprisal or promised them a benefit; or otherwise undermined
the
exclusive representative in the eyes
of
bargaining unit members.
Here, viewed most favorably, CCPOA has established only that a representative of
CDCR
met
With
certain CCPOA repr~sentatives to discuss a matter within the scope
of
representation.
There is no evidence, however, that in or by this meeting the State bargained with employees,
made threats or promises
of
benefit, or undermined the role
of
the exclusive representative.
Thus, no bypass violation is established. (State
of
California (Department
of
Personnel
Administration), supra, PERB pecision No. 2078-S.)5
Conclusion
Therefore, the allegations which fail to state a prima facie case are hereby dismissed based on
.the facts and reasons s~t forth
3:bove
as well as in the July 30, 2010 Partial Warning Letter.
Right to Appeal
. ' 	'
	.:
	. 	.
.	
,,
	.,'
'"
	.
Pursuant to PERB Regulations, Charging Party may obtain a review
of
this dismissal
of
the
charge by filing an
appc:al
to the .Board itself within twenty (20) calendar days after service
of
this dismissal.·. (PERB 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.
A document is considered "filed" when actually received during a regular PERB business day.
(PERB Regulations 32135(a) and 32130; see also Gov. Code,§ 11020, subd. (a).) A document
is also considered "filed"
w:hen
received by facsimile transmission before the close
of
business
together with a Facsimile Transmission Cover Sheet which meets the requirements
of
PERB
Regulation 3213 5(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. (PERB Regulation 32135(6),
(c) and (d); see.also PERB 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
5 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.)

SA-CE-1783-S
September 23, 2010
Page 4
If
Charging Party files a timely appeal
of
the refusal to issue a complaint, any other party
may
file with the Board an original and five (5) copies
of
a statement in opposition within twenty
(20) calendar days following the date
of
service
of
the appeal. 	(PERB 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 PERB 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. (PERB
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
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. (PERB Regulation 32132.)
Final Date
If
no appeal is filed within the specified time limits, the dismissal wiii become finai when the
time limits have expired.
Sincerely,
TAMIR. BOGERT
General Counsel
By
Les Chisholm
Division Chief
____________
~
Attachment
cc: Ronald Pearson

STATE OF CALIFORNIA 	ARNOLD SCHWARZENEGGER, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
F
Sacramento Regional Office
I 031 18th Street
Sacramento,
CA
95811-4124
Telephone: (916) 327-8387
Fax: (916) 327-6377
F
July 30, 2010
Suzanne L. Branine, Staff Legal Counsel
California Correctional Peace Officers Association
7 55 Riverpoint Drive, Suite 200
West Sacramento, CA 95605-1634
Re: 	California Correctional Peace Officers Association
v.
State
of
California (Department
of
Corrections & Rehabilitation, Corcoran State Prison)
Unfair Practice Charge No. SA-CE-1783-S
PARTIAL WARNING LETTER
Dear Ms. Branine:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on April
1,
2009. 	The California Correctional Peace Officers
Association (CCPOA or Charging Party) alleges that the State
of
California (Department
of
Corrections & Rehabilitation, Corcoran State Prison) (CDCR or Respondent) and Department
of
Personnel Administration (DPA) and Does 1-100 violated section 3519(a), (b), (c) and (d)
of
the Ralph C. Dills Act (Dills Act or Act) 1 by engaging in illegal conduct at California State
Prison Corcoran.
The charge names "Does 1-100" and DP A
as
Respondents. A charging party may not name
Does
as
respondents to an unfair practice charge. (State Employee Caucus for a Democratic
Union, et al. (2000) PERB Decision No. 1399-S.) Dills Act section 3513(i) states that '"State
employer' or 'employer' for the purposes
of
bargaining or meeting and conferring in good
faith, means the Governor or
his.
or her designated representatives." Therefore CCPOA's
allegation that "Does 1-100" violated the Dills Act must be dismissed.
As to the specific allegations in the charge, CCPOA alleges in part that CDCR bypassed the
exclusive representative and attempted to dominate the Charging Party by selecting who
participated in a meeting on December 8, 2008.2 The charge contends that contrary to normal
practice, on December 8, 2008, management at Corcoran conducted a meeting with
correctional officers to discuss the implementation
of
a 70/30 split of new Health Care Access
positions that were going to be activated. The 70/30 split is significant because Unit 6
members would be bidding on 70% of the new positions coming on line based on their
respective seniority.
1 The Dills Act is codified at Government Code section 3512 et seq. The text
of
the
Dills Act and the Board's Regulations may be found on the Internet at www.perb.ca.gov.
2 The interference, discrimination, refusal to bargain, and unilateral change allegations
contained in the charge are not addressed by this Partial Warning Letter.

SA-CE-1783-S
July 30, 2010
Page 2
CCPOA asserts that
CDCR
management has known since activation
of
the prison in 1988, that
the only CCPOA representative at the Chapter level who has authority to speak on
behalf
of
the members at large
or·
to execute agreements, is the elected Chapter President. Chris Brady,
the current Chapter President, was not informed
of
the December 8, 2008 meeting. He
was
present at
work
on that day, and following the meeting, one
of
the invited Unit 6 members
informed him
of
what was discussed.
CCPOA asserts that Captain R. C. Garcia who was responsible for conducting the
meeting on
December 8, 2008 and who had an unsuccessful run for Statewide CCPOA President
in
September 2008, was exercising revenge on Brady because Brady did not support Garcia
in
the
election. 	Garcia allegedly invited only those CCPOA members who supported his candidacy
for Statewide President to the December 8 meeting.
Bypassing CCPOA
An employer may
not
communicate directly with employees to undermine or derogate
the
representative's exclusive authority to represent unit members. (Muroc Unified School
District, (1978) PERB Decision No. 80.) Similarly, the employer violates the duty to
bargain
in good faith when it bypasses the exclusive representative to negotiate directly with
employees over matters within the scope ofrepresentation. (Walnut Valley Unified
School
District (1981) PERB Decision No. 160.) However, once a policy has been established
by
lawful means, an employer has the right to take necessary actions, including consulting
with
employees, to implement the policy. (Ibid.) To establish that an employer has unlawfully
bypassed the union,.the charging party must demonstrate that the employer dealt directly with
its employees (1) to create a new policy
of
general application, or (2) to obtain a waiver
or
modification
of
existing policies applicable to those employees. (Ibid.)
Whether Captain Garcia's conduct was a result
of
lingering intra-union politics or not,
it
is not
clear that there were negotiations conducted at the December 8 meeting or
if
the meeting was
simply informational. 	There is no information provided that demonstrates CDCR attempted to
undermine or derogate the representative's exclusive authority to represent unit members
Without additional information stating what transpired at the meeting, CCPOA has not
established that CDCR, through Captain Garcia's meeting, violated the employer's duty to
meet and confer with delegated representatives
of
the exclusive representative when discussing
negotiable subjects. 	(Walnut Valley Unified School District, supra, PERB Decision No. 160.)
Domination
To state a prima facie violation
of
Dills Act section 3 519( d), a charging party must allege facts
demonstrating that the employer's conduct tends to interfere with the internal activities
of
an
employee organization or tends to influence the choice between employee organizations.
(Santa Monica Community College District (1979) PERB Decision No. 103; Redwoods
Community College District (1987) PERB Decision No. 650.) Proof that an employer intended

SA-CE-1783-S
July 30, 2010
Page 3
to unlawfully dominate, assist or influence employees' free choice is not required. Nor is
it
necessary to prove that employees actually changed membership as a result
of
the employer's
act. (Santa Monica CCD, supra, PERB Decision No. 103; Redwoods CCD, supra, PERB
Decision No. 650.) The threshold test is "whether the employer's conduct tends to influence
[free] choice or provide stimulus in one direction or the other." (Santa Monica CCD,
p:
22.)
Captain Garcia's decision not to inform the chapter president
of
the December 8 meeting fails
to demonstrate an effort to influence unit members. Again, without specifically stating
what
happened at the meeting, it is not clearhow Captain Garcia's conduct tends to interfere
with
the internal activities
of
CCPOA. You have not established how CDCR' s conduct tends to
interfere with employee choice or provide stimulus for employees to decide they may not need
CCPOA. 	This allegation does not demonstrate a prima facie case
of
attempted domination.
For these reasons, the allegations that "Does 1-100" are co-Respondents, and that CDCR
bypassed CCPOA and attempted to dominate the exclusive representative, as presently written,
do not state a prima facie case.3
If
there are any factual inaccuracies in this letter or additional
facts that would correct the deficiencies explained above, Charging Party may amend the
charge. The amended charge should be prepared on a standard PERB unfair practice charge
form, clearly labeled First Amended Charge, contain all the facts and allegations you wish to
make, and be signed under penalty
of
perjury by an authorized agent
of
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 an amended charge or withdrawal is not filed on
or before August 12, 2010,4 PERB will dismiss the above-described allegations from your
charge.
	If
you have any questions, please call me at the telephone number listed above.
Sincerely,
Roger Smith
Labor Relations Specialist
3 In Eastside Union School District (1984) PERB Decision No. 466, the Board
explained that a prima facie case is established where the Board agent is able to make
"a
determination that the facts as alleged in the charge state a legal cause
of
action and that the
charging party is capable of providing admissible evidence in support of the allegations.
Consequently, where the investigation results in receipt of conflicting allegations of fact or
contrary theories of law, fair proceedings, if not due process, demand that a complaint be
issued and the matter be sent to formal hearing." (Ibid.)
4 A document is "filed" on the date the document is actually received by PERB,
including if transmitted via facsimile. 	(PERB Regulation 32135.)