State of California (Department of Corrections and Rehabilitation, Avenal State Prison) * * * OVERRULED IN PART by Trustees of the California State University (2012) PERB Decision No. 2287-H and County of Santa Clara (2013) PERB Decision No. 2321-M * * * (PERB 2196S)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
CALIFORNIA CORRECTIONAL PEACE
OFFICERS ASSOCIATION,
Charging Party,
V.
STATE OF CALIFORNIA (DEPARTMENT OF
CORRECTIONS & REHABILITATION,
AVENAL STATE PRISON),
Respondent.
Case No. SA-CE-1830-S
PERB Decision No. 2196-S
August 12, 2011
Appearances: Jennifer L. Ragan, 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, Avenal State Prison).
Before McKeag, Dowdin Calvillo and Huguenin, Members.
DECISION
DOWDIN CALVILLO, 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 dismissal of its unfair practice charge. The charge, as amended,
alleged that the State of California (Department of Corrections & Rehabilitation, Avenal State
Prison) (CDCR or Department) violated the Ralph C. Dills Act (Dills Act)1 by unilaterally
changing its policy concerning unannounced random searches within the secured perimeter at
A venal State Prison (ASP) without providing CCPOA notice and an opportunity to bargain
regarding the effects of the change. The Board agent dismissed the charge on the ground that
it failed to state a prima facie violation of the Dills Act.
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.
* * * OVERRULED IN PART by
Trustees of the California State University (2012) PERB Decision
No. 2287-H and
County of Santa Clara County (2013) PERB Decision No. 2321-M * * *

The Board has reviewed the dismissal and the record in light
of
CCPOA's appeal,
CDCR's response to the appeal, and the relevant law. Based on this review, the Board affirms
the dismissal
of
the charge for the reasons set forth below.
BACKGROUND
ASP has had several different written policies under which it conducts employee
searches for unauthorized items and contraband. Under Operational Procedure (OP) 28,
employees are subject to search when they enter the main gate to the institution.
	If
the search
staff discovers unauthorized items in the possession
of
an entering employee, employees are
normally permitted to return unauthorized items to their vehicles
if
doing so would not
compromise the security
of
the institution.2 Thus, under OP 28, security staff only confiscate
"felonious contraband."
In addition, under State Department Operations Manual (DOM) section 52050.15, all
employees
of
CDCR are subject to search
of
their person, property, and vehicles, "to the extent
deemed necessary by the official in charge." DOM section 52050.15 further authorizes CDCR
to conduct employee searches based upon a "reasonable suspicion" that an employee possesses
unauthorized items, and provides:
An employee may be subjected to a more intensive search than is
normally required when the official in charge has reasonable
suspicion that the employee is involved in the unauthorized or
unlawful possession or movement
of
anything into or out
of
an
institution or facility
of
the Department.
When a search is conducted under DOM section 52050.15, the employee is entitled to be
informed of the reason for the search and the name
of
the official ordering the search before
the search begins.
2 Examples of unauthorized items include personal pocket knives, personal electronic
paging devices and cell phones, gym bags, backpacks, and extra clothing.
2

In May 2009, ASP implemented a new Operational Procedure, OP 38, which authorized
the Department to conduct random, unannounced searches
of
employees entering the secured
perimeter
of
ASP. A search conducted pursuant to OP 38 does not require reasonable
suspicion that the employee is involved in the unauthorized or unlawful movement
of
items
into or out
of
the institution. OP 38 also does not require that the employee be advised
of
the
reason for the search or the name
of
the official ordering the search. Unauthorized items
discovered during such searches are subject to confiscation, and employees are not afforded the
opportunity to return any such items to their vehicles. OP 38 further provides, in relevant part:
In some instances, the scope should include all staff entering,
while at other times, a random sampling/selection would make
for a more reasonable and manageable operation, i.e., every third
person, etc. In each case, management staff should be mindful
of
potential overtime costs, delays in service, and the appearance
of
fundamental fairness.
CCPOA did not receive formal notice
of
the decision to implement OP 38 prior to its
implementation. 	Once the policy was implemented, CCPOA did not request to bargain over
the effects
of
OP 38.
PROCEDURAL HISTORY
On October 14, 2009, CCPOA filed an unfair practice charge alleging that, by
implementing OP 38 without providing CCPOA with notice and an opportunity to bargain,
ASP unilaterally changed its policy and procedure governing employee entrance inspections.
The charge alleged that OP 38 represented a unilateral change because it "replaced OP 28 and
deleted some of the procedures that had existed under OP 28." The charge further alleged that,
under OP 38, "staff were no longer permitted to return unauthorized items to their vehicles,
and all contraband of any kind was to be confiscated."
After the Board agent issued a letter warning CCPOA that the charge failed to state a
prima facie case of unilateral change, ~CPOA filed an amended charge. In its amended
3

charge, CCPOA stated that it did not object to the decision to conduct searches under OP 38 or
to the confiscation
of
unauthorized items, but only to the manner in which OP 38 was
implemented and the failure
of
CDCR and ASP to meet and confer regarding the impacts
of
the decision to conduct random, unannounced searches pursuant to OP 38. The amended
charge further alleged that the implementation
of
OP 38 constituted a unilateral change in the
past practice for random, unannounced searches set forth under DOM section 52050.15 in that
it removed the requirement that there be reasonable suspicion that the employee is involved in
the unauthorized or unlawful possession or movement
of
items into or out
of
the institution and
that employees be informed
of
the reason for the search and the name
of
the official conducting
the search.3 In addition, the amended charge alleged that the implementation
of
OP 38 "causes
significant processing delay in getting officers through the secured perimeter sally ports and to
their posts timely" and that "reporting officers are not properly compensated for their time as
they arrive to their posts late, and those already on shift who leave late due to late relief are
paid overtime wages as a result." In support
of
these assertions, CCPOA provided sign-
in/sign-out sheets purportedly documenting the late relief due to random, unannounced
searches
of
employees arriving at ASP on April
19
and 20, 2009.
On September 2, 2010, the Board agent dismissed the charge, finding that the amended
charge failed to provide facts showing that CCPOA requested to negotiate over either the
decision to implement OP 38 or the impact
of
the implementation.
3 The amended charge also asserts that, in comparison to OP 28, OP 38 designates a
significantly more extensive list of unauthorized items and does not allow staff to return
unauthorized items to their vehicles. However, it is clear from the amended charge and appeal
that the alleged unilateral change is not from the gate searches covered by OP 28 but rather
from the reasonable suspicion searches covered by DOM section 52050.15 to the broader
random searches at the secured perimeter authorized by OP 38.
4

ISSUES ON APPEAL
On appeal, CCPOA argues:
1.	
Where the employer does not provide notice or an opportunity to bargain prior
to implementation
of
a unilateral change, the union does not waive its right to bargain by
failing to demand bargaining over the effects
of
the change, citing State
of
California
(Department
of
Personnel Administration) (1999) PERB Decision No. 1313-S (Department
of
Personnel Administration); and
2.	
The charge, as amended, sets forth sufficient facts to state a prima facie case
of
failure to bargain over the effects
of
the implementation
of
OP 38. In support
of
this argument,
CCPOA asserts that the plain language
of
OP 38 indicates that management "clearly
appreciated" that there would be impacts within the scope
of
representation and that
documentation submitted with the charge and amended charge establishes the impact
of
the
implementation
of
OP 38 on late relief and overtime resulting from the searches.
In response, CDCR argues:
1.	
The appeal is defective because it fails to comply with the requirements
of
PERB Regulation 32635;4
2. 	The charge fails to establish that CDCR implemented a change to its search
policy from that set forth under either OP 28 or DOM section 52050.15; and
3. 	The charge was properly dismissed because CCPOA failed to meet its burden
of
showing that it made a valid demand to bargain the effects
of
any change in policy.
4 PERB regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.
5

DISCUSSION
As set forth in the amended charge and undisputed on appeal, CCPOA does not object
to the actual searches being conducted under OP 3 8 or to the confiscation
of
unauthorized
items. Thus, the appeal in this case is limited to the issue
of
whether the charge, as amended,
states a prima facie case
of
failure to bargain the effects
of
a nonnegotiable unilateral change in
policy.
Compliance with Requirements for Filing Appeal
Pursuant to PERB Regulation 32635(a), an appeal from dismissal must:
(
1)
State the specific issues
of
procedure, fact, law or rationale to
which the appeal is taken;
(2) Identify the page or part
of
the dismissal to which each
appeal is taken;
(3) State the grounds for each issue stated.
Compliance with PERB regulations governing appeals is required to afford the
respondent and the Board an adequate opportunity to address the issues raised, and
noncompliance will warrant dismissal
of
the appeal. (Oakland Education Association
(Baker) (1990) PERB Decision No. 827; United Teachers-Los Angeles (1989) PERB Decision
No. 738.) To satisfy the requirements
of
PERB Regulation 32635(a), the appeal must
sufficiently place the Board and the respondent "on notice
of
the issues raised on appeal."
(State Employees Trades Council United (2009) PERB Decision No. 2069-H (State Employees
Trades Council); City & County ofSan Francisco (2009) PERB Decision No. 2075-M (City &
County
of
San Francisco).) An appeal that does not reference the substance of the Board
agent's dismissal or merely reiterates facts alleged in the unfair practice charge fails to comply
with PERB Regulation 32635(a). (United Teachers
of
Los Angeles (Pratt) (2009) PERB Order
No. Ad-381 (Pratt); Lodi Education Association (Hudock) (1995) PERB Decision No. 1124;
6

United Teachers - Los Angeles (Glickberg) (1990) PERB Decision No. 846; State Employees
Trades Council; Contra Costa County Health Services Department (2005) PERB Decision
No. 1752-M; County
of
Solano (Human Resources Department) (2004) PERB Decision
No. 1598-M.)
CCPOA's arguments in support
of
its appeal discuss the substance
of
the Board agent's
dismissal letter and make reference to specific pages
of
the letter. Moreover, as indicated by
CDCR's discussion
of
the merits
of
CCPOA's arguments in its response to the appeal, the appeal
sufficiently put the Board and CDCR on notice that CCPOA
is
appealing the Board agent's
dismissal
of
the effects bargaining allegations. (City & County
of
San Francisco.) Therefore,
we find that CCPOA sufficiently placed CDCR and the Board on notice
of
the issues raised on
appeal.
Duty to Bargain over Effects
of
Nonnegotiable Decision
A unilateral change is a "per se" violation
of
Dills Act section 3519, 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 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. (Walnut Valley Unified School District
(1981) PERB Decision No. 160; Grant Joint Union High School District (1982) PERB Decision
No. 196.)
"Where a change is made to a matter that is not within the scope of representation, or
where the right to demand bargaining over the decision to change has been waived by the
employee organization, the employer is obligated to provide notice and an opportunity to bargain
7

over the negotiable effects
of
the decision, but not the decision itself." (County
of
Riverside
(2010) PERB Decision No. 2097-M (County
of
Riverside), citing Sylvan Union Elementary
School District (1992) PERB Decision No. 919 (Sylvan),
Mt.
Diablo Unified School District
(1984) PERB Decision No. 373b and Newman-Crows Landing Unified School District (1982)
PERB Decision No. 223 (]'lewman-Crows Landing).) Thus, an employee organization is
entitled to reasonable notice and an opportunity to bargain over the "reasonably foreseeable"
negotiable effects
of
a non-negotiable decision. (Fremont Union High School District (1987)
PERB Decision No. 651; Trustees
of
the California State University (2007) PERB Decision
No. 1926-H; Newman-Crows Landing.)
Where formal notice is not given, however, but the employee organization receives
actual notice
of
a decision, the employer's "failure to give formal notice is
of
no legal import."
(County
of
Riverside; Sylvan; Regents
of
the University
of
California (1987) PERB Decision
No. 640-H.) Moreover, "an employer's failure to provide notice and an opportunity to bargain
before implementation does not constitute an unlawful unilateral change when there is no
evidence
of
negotiable effects resulting from the decision." (Beverly Hills Unified School
District (2008) PERB Decision No. 1969 (Beverly Hills), citing Oakland Housing Authority
(2005) PERB Decision No. 1753-M (Oakland Housing Authority) [upholding dismissal
of
charge because charging party failed to identify any negotiable effects resulting from
employer's non-negotiable decision].)
In order to make a prima facie case
of
violation
of
the duty to bargain in good faith over
the effects
of
a non-negotiable decision, the employee organization must demonstrate that it
made a valid request to bargain the negotiable effects
of
the employer's decision. (State
of
California (Department
of
Corrections) (2006) PERB Decision No. 1848-S (Department
of
Corrections); County
of
Riverside; Sylvan.) The request must clearly identify negotiable areas
8

of
impact and must clearly indicate the employee organization's desire to bargain over the
effects
of
the decision, as opposed to the decision itself. (County
of
Riverside; Sylvan;
Newman-Crows Landing; Allan Hancock Community College District (1989) PERB Decision
No. 768; Beverly Hills.) In the absence
of
such an identification, the employer has no duty to
bargain. (Trustees
of
the California State University (2009) PERB Decision No. 1876a-H
(Trustees); Beverly Hills.) Furthermore, the employee organization must show that the change
had an actual effect or impact on a negotiable matter. (Trustees, citing Regents
of
the
University
of
California (1999) PERB Decision No. 1316-H.)
1.
	Notice
of
Non-Negotiable Change
There is no dispute that CDCR did not provide CCPOA with formal notice
of
its
intention to implement OP 38.5 However, it is apparent that CCPOA had actual notice by at least
May 2009, when CDCR began performing inspections under OP 38 at ASP.6 Therefore, the
failure to give formal notice is
of
no legal import. (Sylvan; Klamath-Trinity Joint Unified
(:',,l,,.,.
1
nz·
eof,az'ct
(2005) PERB De0	
JJl.,,ftUUt	
.JH	
;
"1·0~
11
1\.T
r,	
17 7 8 )•	
L/	
\.11.:)
	l~V.	
I
2. 	Failure to Request Effects Bargaining
As indicated above, in order to state a prima facie case
of
failure to bargain over the
effects
of
a non-negotiable management decision, the employee organization must demonstrate
that it made a valid request to negotiate over identifiable, reasonably foreseeable, and negotiable
5 The amended charge alleges that OP 38 altered the past practice set forth in DOM
section 52050.15 regarding unannounced searches by removing the requirement
of
reasonable
suspicion as well as the requirement that employees be advised
of
the reason for the search and
the name
of
the official ordering the search. Accordingly, for purposes
of
this decision, it is
assumed that a change in policy occurred.
6 Indeed, it appears from the documents filed with the amended charge that CCPOA had
actual notice prior to May 2009, as it asserts that sign-in/out sheets dated April 19 and 20, 2009
attached to the amended charge "document[] the late relief due to random unannounced
searching of all first watch BU6 employees arriving at ASP."
9

effects
of
the decision. (Department
of
Corrections; Riverside.) Because the charge fails to
allege that CCPOA requested bargaining at all, the charge was properly dismissed.
CCPOA argues that because OP 38 was implemented without prior notice, its failure to
request bargaining did not result in the waiver
of
its right to bargain, citing Department
of
Personnel Administration. The issue here, however, is not whether CCPOA waived its right to
bargain over the effects
of
CDCR' s non-negotiable decision to implement OP 3 8, but rather
whether CCPOA has met its burden
of
establishing a prima facie case that CDCR unlawfully
failed to bargain over the effects
of
that decision. As part
of
its burden, CCPOA was required
to show that it made a request to bargain the effects
of
the decision. (Sylvan [noting that
waiver is no longer an affirmative defense and that the charging party must show, as part
of
its
prima facie case, that it made a request to bargain the effects
of
the decision].) Having failed
to do so, it cannot establish a prima facie case.
Department
of
Personnel Administration is distinguishable. That case did not concern
effects bargaining but instead involved the allegation that the State unlawfully refused to
bargain over a decision to modify an agreement concerning the provision
of
paid union leave.
Although the administrative law judge dismissed the charge, the employer filed an exception
asserting that the charge was barred because the union waived its right to negotiate over the
alleged change in union leave policy when it cancelled a scheduled bargaining session over the
subject. In rejecting this exception, the Board noted,"[ w]hen an employer does not provide
notice and the opportunity to bargain over an alleged change, the exclusive representative's
failure to pursue bargaining is not considered a waiver." (Department
of
Personnel
Administration, citing Beverly Hills.) The Board further stated, "[s]imilarly, when an alleged
unilateral change has already been implemented, or
if
the employer has already made a firm
decision to implement the change, the exclusive representative does not waive its right to
10

bargain by not pursuing negotiations." (Ibid., citing San Francisco Community College
District (1979) PERB Decision No. 105; Arcohe Union School District (1983) PERB Decision
No. 360; and Morgan Hill Unified School District (1986) PERB Decision No. 554a.)
Here, there is no assertion that CCPOA waived its right to bargain over the effects
of
implementation
of
OP 38. Rather, CCPOA has failed to establish, as part
of
its prima facie
case, that it made a request to bargain. Therefore, the charge was properly dismissed.
3.	
Evidence
of
Negotiable Effects
Even
if
CCPOA were relieved
of
the obligation to request bargaining, the charge was
properly dismissed because CCPOA failed to identify any negotiable effects arising out
of
the
decision. In support
of
its argument that implementation
of
OP 38 resulted in negotiable effects,
CCPOA asserts that the language
of
OP 38 itself "clearly appreciated that there would be
impacts within the scope
of
representation" and that the sign-in/out sheets attached to the
amended charge document the impact
of
implementation on late relief and overtime. We find no
such clear indication. The language
of
OP 38 relied upon states that management should "be
mindful
of
potential overtime costs, delays in service, and the appearance
of
fundamental
fairness," but does not clearly identify any actual negotiable impacts. While the sign-in/out
sheets contain notations that appear to refer to changes in start times due to searches at the
entrance gate prior to the commencement of a shift, they fail to clearly identify any employee
who suffered a loss in pay or increased overtime as a result
of
the conduct of an unannounced,
random search pursuant to OP 38. Thus, they do not provide the necessary specificity sufficient
to constitute a "clear and concise statement of the facts and conduct alleged to constitute an
unfair practice." (PERB Reg. 32615(a)(5); State
of
California (Department
of
Food and
Agriculture) (1994) PERB Decision No. l 071-S, citing United Teachers-Los Angeles
(Ragsdale) (1992) PERB Decision No. 944 [The charging party's burden includes alleging the
11

"who, what, when, where and how"
of
an unfair practice.].) Accordingly, the charge fails to
state a prima facie case
of
failure to bargain.
We disagree with our dissenting colleague that PERB' s longstanding precedent
governing effects bargaining should be replaced with a new test. Under existing law, the
employer has an obligation to bargain over the negotiable effects
of
a nonnegotiable
management decision, provided that the union makes a valid request to bargain that identifies
reasonably foreseeable effects within the scope
of
representation, thereby triggering the
employer's duty to bargain. (Newman-Crows Landing; Beverly Hills; County
of
Riverside;
Department
of
Corrections.) In the absence
of
such a request, an employer who implements a
nonnegotiable decision without prior notice does not violate the duty to bargain. (Beverly
Hills; Oakland Housing Authority.)
Under the dissent's proposal, however, an employer who fails to provide pre-
implementation notice
of
"changes foreseeably impacting employment conditions" would be
deemed to have committed an unfair practice regardless
of
whether the employee organization
requests bargaining and identifies any negotiable effects. We do not believe that this test
would provide a "common sense and easily applied bright line" in cases involving the duty to
bargain over the effects
of
a nonnegotiable management decision. Instead, it would require the
employer to possess unusual clairvoyance in anticipating that the employee representative
might identify some negotiable effects, even
though-as
the dissent points
out-the
employer
foresees few or no impacts on employment conditions. Such a rule would effectively require
the employer to give notice of every management decision it makes, no matter how small or
insignificant, for fear that the union will identify some effect that it believes requires
negotiation. 	We do not believe the law was intended to tie management's hands in this
manner.
12

Our decision strikes an appropriate balance between the right
of
the employer to
implement a nonnegotiable decision and the right
of
the union to demand bargaining over the
negotiable effects
of
such a decision. Ideally,
if
the employer reasonably anticipates that its
decision will have negotiable effects, it will provide sufficient notice prior to implementation
to afford an opportunity for negotiation. This is particularly important in cases where it would
be difficult to undo the effects
of
implementation, such as a layoff. 	However, where the
employer does not reasonably anticipate any negotiable effects and therefore implements with
little or no prior notice, the union may still demand bargaining after implementation, provided
it can identify any negotiable effects. In such cases, once the union is aware
of
the change, the
failure to give formal notice is
ofno
legal import. (County
of
Riverside.) Moreover, the union
does not waive its right to bargain by failing to request bargaining prior to implementation.
(Department
of
Personnel Administration.) Nonetheless, the union must still make a valid
request to negotiate that clearly identifies the negotiable effects
of
the decision. (Department
effects, there can be no unilateral change. (Beverly Hills.)
ORDER
The unfair practice charge in Case No. SA-CE-1830-S is hereby DISMISSED
WITHOUT LEAVE TO AMEND.
Member McKeag joined in this Decision.
Member Huguenin's dissent begins on page 14.
13

HUGUENIN, Member, dissenting: In my view, the California Correctional Peace
Officers Association (CCPOA) has stated a prima facie case. Accordingly, I would remand to
the Public Employment Relations Board (PERB or Board) General Counsel's Office for
issuance of a complaint.
Standard of Review
We stand here in the shoes of a Board agent. We must accept as true the allegations of
CCPOA, regardless of contrary, perhaps even more persuasively stated, allegations of the State
of California (Department of Corrections & Rehabilitation, Avenal State Prison) (CDCR).
(San Juan Unified School District (1977) EERB Decision No. 12; 1 Trustees of the California
State University (Sonoma) (2005) PERB Decision No. 1755-H.) A Board agent may not
resolve factual disputes but must instead leave them for an administrative law judge in a
hearing. (Golden Plains Unified School District (2002) PERB Decision No. 1489.) On review
of a dismissal, the Board is likewise limited.
Moreover, our regulations require both parties to an unfair practice charge case to
proffer allegations under oath. (PERB Regulation 32620(c).) Thus, a Board agent, and the
Board when reviewing a Board agent's dismissal, may consider only those allegations
proffered under oath. (United Educators of San Francisco (Banos) (2005) PERB Decision
No. 1764.) Here, CCPOA so proffered its allegations, while CDCR did not. Accordingly, we
may consider here only the allegations of CCPOA.
The Charge
CCPOA alleged that CDCR failed to provide CCPOA any prior notice whatsoever of its
adoption and implementation in late May 2009, of a new operational procedure (38) requiring
1 Prior to January 1978, PERB was known as the Educational Employment Relations
Board or EERB.
14

additional searches
of
employees for forbidden materials. CCPOA further alleged that new
search protocols in the new operational procedure foreseeably impacted employee terms and
conditions
of
employment, and that the new procedure itself referred to this impact. 	CCPOA
did not allege that it made a demand to bargain the foreseeable impact
of
the new procedures
search protocols on employee terms and conditions
of
employment. The Board agent
dismissed the charge because CCPOA failed to allege an impact bargaining demand.
Prima Facie Case
This case arises under the Ralph C. Dills Act (Dills Act). The Dills Act requires an
employer, which proposes to adopt or change a law, rule, resolution or regulation directly
relating to matters within the scope
of
representation, to give the union ("recognized employee
organization") prior written notice and an opportunity to negotiate ("meet and confer").
(Dills
Act§
3516.5.) An employer's notice must be timely, that is, provided early enough for
the union to demand and engage in bargaining prior to the employer reaching a firm decision.
And, as to an employer decision concerning a non-negotiable matter having foreseeable impact
on terms and conditions
of
employment, notice is timely
if
provided to the union sufficiently
before the employer implements the change so the union may seek and engage in impact
bargaining prior to implementation.
Further, the notice must be written and provided to the union. (Id.) Mere discussion
with employees represented by the union is insufficient. (State
of
California (Department
of
Consumer Affairs) (2005) PERB Decision No. 1762-S.)
If
any party claims that an employee
is an agent
of
the union, that party bears the burden
of
establishing the agency relationship.
(Mount Diablo Unified School District, et al. 	(1977) EERB Decision No. 44; Inglewood
Unified School District (1990) PERB Decision No. 792.) Here, CCPOA alleged that no notice
was given. Contrary suggestions made by CDCR are not cognizable here.
15

Unilateral Changes
Unilateral changes to employment conditions, whether directly or by impact of an
otherwise non-negotiable decision, disrupt employer-employee communication and destabilize
employer-employee relations. Such changes deny to employees the right to be represented by
their designated organizations, and deny to those organizations the right to represent
employees.
Our statutes promote the improvement of employer-employee relations through open
and frequent communication between employers and the unions designated by the employees.
That communication includes timely notice to a union of anticipated employer changes to, or
firm employer decisions impacting, employment conditions of employees represented by the
umon.
An employer is obligated to communicate with the union regarding consideration of a
possible change relating to employment conditions, and to bargain, upon request, with the
union. (Public Employment Relations Bd. v. Modesto City Schools Dist. (1982)
136 Cal.App.3d 881, 900.) An employer failing to provide the union timely notice of a
proposed change, and thereafter changing employment conditions, acts in derogation of its dual
obligations to communicate with the union and to bargain, upon request, with the union. 	(Id.)
Where the change to employment conditions arises as an impact of a firm but otherwise non-
negotiable decision, the same result obtains: failure to provide timely notice of the firm
decision, or to bargain upon request regarding the foreseeable impacts, derogates the
employer's obligations. (Mt. Diablo Unified School District (1983) PERB Decision No. 373.)
16

DISCUSSION
Our precedents hold that a union need not demand bargaining if it does not receive
timely notice of an employer's change in a matter subject to negotiation, and that such a union
does not, by failing to request bargaining, waive its bargaining rights. (State of California
(Department of Personnel Administration) (1999) PERB Decision No. 1313-S and cases cited
therein.) I would apply that principle to cases involving impact bargaining as well. 	Thus, I
would hold that an employer, which fails to provide pre-implementation notice of changes
foreseeably impacting employment conditions, implements such changes unlawfully, and that a
union does not, by failing to request impact bargaining, waive its impact bargaining rights.
Impact bargaining cases are of two varieties. Frequently, a public employer acts
publicly when considering extensive changes to its operations which may give rise to
foreseeable effects on employees. The prime example is a layoff or reduction in force. 	In such
cases the employer often seeks public input concerning budgetary priorities and possible
program or service reductions, and invites employee organizations as well as other
stakeholders to participate by suggesting alternatives. A firm decision is taken in public, and
notice is given to interested employee organizations. Most of our precedents dealing with
impact bargaining have arisen in these circumstances, in which the union has notice and the
employer's firm decision precedes by weeks the employer's implementation.
In some impact bargaining cases, however, the employer acts within its perceived
discretion and without public notice, seeking to accomplish the change with a minimum of
fanfare and as little employee blow back as possible. The requisite notice to the union is
overlooked, or deemed unnecessary. The employer foresees few or no impacts on employment
conditions, or seeks to avoid or at least delay anticipated employee dissatisfaction.
Confidentiality trumps candor. 	Implementation precedes notice. The union first learns of the
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change after implementation and cannot interpose a timely demand to bargain over the
impacts. In these circumstances, requiring a union to make a post-implementation bargaining
demand as a condition to remedying the employer violation is unreasonable.
I would apply the same test
of
notice in both decision and impact bargaining cases. It
would promote communication by employers with employees and their organizations over
matters
of
interest to both as envisioned by the Legislature in Section 3512. Moreover, it
would encourage more timely discussion
of
issues and tend to avoid disputes over the impacts
of
employer changes in the organization and delivery
of
public services. Finally, it would
provide practitioners a common sense and easily applied bright line for measuring whether an
employer has complied with its duty to communicate with the union regarding a proposed
change possibly impacting employment conditions
of
employees.
For these reasons, I would remand this case to the General Counsel's Office for
issuance
of
a complaint.
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