State of California (Department of Personnel Administration) (California District of Forestry Employees Association) (PERB 0921S)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA DEPARTMENT OF 	FORESTRY
EMPLOYEES' ASSOCIATION, LOCAL 2881,
IAFF,
Charging 	Party,
v.
STATE OF CALIFORNIA 	(DEPARTMENT OF
PERSONNEL ADMINISTRATION),
Respondent.
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) 	Case No. 	S-CE-505-S
PERB 	Decision No. 	921-S
January 22, 	1992
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Appearances: 	Carroll, 	Burdick & McDonough by Kathleen M.
Hansen, 	Attorney, 	for California Department of Forestry
Employees' Association, Local 2881, 	IAFF; Christopher W. Waddell,
Chief Counsel, 	and M. 	Jeffrey Fine, 	Deputy Chief Counsel, 	for
State of California 	(Department of Personnel Administration).
Before Shank, 	Camilli and Carlyle, 	Members.
DECISION
CARLYLE, 	Member: 	This case is before the Public Employment
Relations 	Board 	(PERB or Board) 	on appeal by the California
Department of Forestry Employees' 	Association, 	Local 2881, 	IAFF
(CDFEA) 	of a Board agent's dismissal 	(attached hereto) 	of 	its
charge 	that 	the 	State of 	California 	(Department 	of 	Personnel
Administration) 	(DPA) 	violated section 3519(b) 	and 	(c) 	and
section 3523 	of the Ralph C. 	Dills Act 	(Dills Act).1 The Board
1The Dills Act 	is 	codified 	at Government Code 	section 	3512
et 	seq. 	Unless 	otherwise 	indicated, 	all 	statutory references
herein are to the Government Code. 	Section 3519 	states, 	in
pertinent part:
It 	shall be unlawful 	for the 	state to do 	any
of 	the 	following:
(
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has 	reviewed the dismissal 	and, 	finding 	it to be 	free of
prejudicial 	error, 	adopts 	it as 	the decision of the Board 	itself,
(b) 	Denying to 	employee organizations 	rights
guaranteed to 	them by this 	chapter.
(c) 	Refuse or 	fail 	to meet and confer 	in
good 	faith with 	a 	recognized 	employee
organized.
Section 3523 	states, 	in pertinent part:
(a) 	All 	initial meet and confer proposals
of 	recognized 	employee 	organizations 	shall
be presented to 	the 	employer at a public
meeting, 	and 	such proposals 	thereafter 	shall
be 	a public 	record.
All 	initial meet and 	confer proposals 	or
counterproposals 	of 	the 	employer 	shall
be presented 	to 	the 	recognized 	employee
organization at a public 	meeting, 	and 	such
proposals 	or 	counterproposals 	thereafter
shall be a public 	record.
(b) 	Except in cases 	of 	emergency as provided
in subdivision 	(d), 	no meeting and conferring
shall 	take place 	on any proposal 	subject 	to
subdivision 	(a) 	until not less than seven
consecutive days 	have 	elapsed 	to 	enable 	the
public 	to become 	informed, 	and to publicly
express 	itself regarding the proposals, 	as
well 	as 	regarding other possible 	subjects 	of
meeting and conferring and 	thereafter, 	the
employer shall, 	in open meeting, 	hear public
comment on all 	matters 	related to 	the meet
and 	confer proposals.
(c) 	Forty-eight hours 	after any proposal
which 	includes 	any 	substantive 	subject which
has 	not 	first been presented 	as 	proposals 	for
public 	reaction pursuant 	to 	this 	section 	is
offered 	during 	any 	meeting 	and 	conferring
session, 	such proposals 	and the position,
if 	any, 	taken thereon by the representatives
of the employer, 	shall be a public record.
FACTUAL 	BACKGROUND
In March 	1991, 	CDFEA submitted 	its 	initial bargaining
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proposals 	for 	state 	response 	and public 	comment 	in accordance
with 	section 	3523 	of the 	Dills Act. 	DPA's 	response was 	also
processed under 	section 3523. 	Two months 	later DPA, 	under a 	new
representative, 	presented 	"dozens 	of proposals." 	CDFEA claims
that 	these proposals 	were blatant 	take-aways with respect 	to
monetary 	and 	other 	rights 	and 	that 	the 	counterproposals 	had
never been presented 	at 	any public 	meeting 	or publicly 	announced
presentation within the meaning of 	section 	3523.
The Board agent, 	in his dismissal, 	concluded that 	section
3523 	does 	not require that a proposal, 	except 	for 	"initial
meet and confer proposals," 	be 	announced at a public 	meeting
or publicly announced presentation. 	Further, 	the 	Board agent
concluded that, 	although the 	failure to 	sunshine a proposal may
be 	indicia of 	an 	intent 	not 	to bargain under the 	"totality of
conduct" 	test 	(California State University 	(CFA) 	(1990) 	PERB
Decision No. 	799-H), 	a violation of the employer's obligation
under section 3523(c) 	was not 	shown. 	Therefore, 	no indicia of
a 	violation of 	the 	obligation to 	bargain had been 	established.
CDFEA'S APPEAL 	OF 	DISMISSAL
CDFEA argues 	that 	section 	3523, 	which provides 	that 	"all
initial 	meet 	and confer proposals" 	should be presented to 	the
employer at a public meeting, 	should 	include all new proposals.
Therefore, 	any time the 	state employer introduces 	a new,
nonrelated 	subject, 	the public 	must be 	informed of 	such 	subject
and given the 	opportunity to respond. 	To do otherwise, 	CDFEA
contends, 	DPA could intentionally limit 	its 	"initial" 	proposals,
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and once 	negotiations 	had 	commenced, 	DPA could 	introduce 	new
proposals 	it 	actually 	intended 	to 	negotiate 	and 	thereby 	evade
the 	need to 	comply with the 	"sunshine" 	requirement.
CDFEA also argues 	that the meaning of 	"all 	initial meet
and confer proposals," 	in light of the public 	interest, 	should
be 	that 	the public 	be 	informed of 	all 	new proposals.
DPA'S 	RESPONSE 	TO CDFEA'S APPEAL
DPA 	filed a 	late response to CDFEA's 	appeal.2 DPA contends
that this 	is 	a public 	notice 	complaint and cannot be adjudicated
in the 	context of 	unfair practice proceedings. 	(California 	State
University 	(CFA). 	supra. 	PERB Decision No. 	799-H.)
DISCUSSION
It 	is well-established that public 	notice 	complaints 	shall
not be adjudicated 	in the 	context of unfair practice proceedings,
but must be 	filed 	in accordance with 	regulations 	governing public
notice complaints. 	(PERB Regulations 	32900-32960; 	Los Angeles
Community College District 	(1983) 	PERB Decision No. 	309,
pp. 	4-5; 	Los Angeles Community College District 	(1981) 	PERB
Decision No. 	167.) 	However, 	this case is unique as it concerns
a violation of 	the Dills Act. 	The public 	notice regulations
provide 	that, 	under the Educational 	Employment Relations Act
2PERB 	Regulations 	are 	codified 	at 	California 	Code 	of
Regulations, 	title 8, 	section 31001 	et seq. 	PERB Regulation
32635 provides 	that a party may 	file a 	statement of opposition
to 	an appeal within 20 days 	following the date 	of 	service 	of 	the
appeal. 	Although DPA filed 	its 	statement of 	opposition 	seven
days 	late, 	CDFEA responded to DPA's 	statement. 	The 	Board 	finds
that 	neither party 	is 	prejudiced 	in the 	Board's 	consideration of
all 	the materials 	submitted.
---- ---- 	- 	--
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(EERA) 	and 	the 	Higher Education 	Employer-Employee 	Relations 	Act
(HEERA)3 public 	notice complaints 	are distinguished 	from unfair
practice complaints. 	Neither the regulation, 	nor statutes,
provide 	a 	separate procedure 	for resolving public 	notice
complaints under the Dills Act.
PERB Regulation 	32602 	provides:
Complaints 	alleging violations 	of 	EERA,
Ralph C. 	Dills Act or HEERA 	shall be
processed as 	unfair practice 	charges 	except
as 	otherwise provided 	in these 	regulations.
As 	the 	statutes 	and regulations 	are 	silent 	concerning a
procedure 	for processing Dills Act public 	notice 	complaints,
the 	Board 	finds 	that 	a public 	notice 	complaint under the 	Dills
Act 	should be processed 	as 	an unfair practice 	complaint.
We 	also 	reject CDFEA's 	argument that 	any proposals 	made
after the 	initial proposal, 	which are unrelated to the prior
proposals, 	need to be sunshined 	in a public 	meeting. 	Section
3523 	uses 	the word 	"initial." 	The 	section requires 	simply that
a party's 	initial 	(marking the commencement; 	beginning; 	first.
Webster's New Internat. 	Diet. 	(3d ed. 	1971) 	p. 	1163) 	proposal
on a given subject be sunshined. 	In this 	case, 	DPA's April 	4,
1991 	letter to CDFEA, 	which contained 	the 	employer's 	original
proposal, 	was the only set of proposals 	that needed to be
sunshined.
3EERA is 	codified at Government Code 	section 3 540 	et 	seq.
HEERA is 	codified at Government Code 	section 	3560 	et 	seq.
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The charge 	in Case No. 	S-CE-505-S 	is hereby DISMISSED
WITHOUT LEAVE 	TO AMEND.
Member Shank 	joined 	in this 	Decision.
Member Camilli's 	concurrence begins 	on page 	7.
. . . .
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Camilli, 	Member, 	concurring: 	Having reviewed the Board
agent's dismissal and, 	finding it to be 	free of prejudicial
error, 	I would adopt it as the decision of the Board itself.
I 	further agree with 	the 	majority decision 	that 	a public
notice 	complaint may be processed 	in the 	same manner as 	an unfair
practice charge under the Ralph C. 	Dills Act.
. . .
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STATE OF CALIFORNIA 	PETE WILSON, Governor
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
Headquarters Office
1031 18th Street
Sacramento, CA 95814-4174
(916) 322-3088	PERS
August 30, 	1991
Ron Yank
44 Montgomery Street, 	Suite 400
San Francisco, 	CA 	94014
RE: 	California Department of Forestry Employees' 	Association.
Local 	2881, 	IAFF v. 	State of California 	(DPA)
Unfair Practice Charge No. 	S-CE-505-S
DISMISSAL 	LETTER
Dear Mr. 	Yank:
On July 	16, 	1991, 	the California Department of Forestry
Employees' 	Association 	(CDFEA) 	filed the above-referenced charge
alleging violations of Government Code sections 	3519(b) 	and 	(c).
Specifically, 	CDFEA alleged that 	"the 	state 	employer has 	violated
the Dills Act by not 	complying with 	section 	3523 	and has 	violated
section 	3519 	by 	insisting 	on negotiating about 	said 	state
employer proposals 	even though they have not been 	sunshined."
I 	indicated to you 	in my attached letter dated August 	19, 	1991
that 	the 	above-referenced 	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 	accordingly. 	You were 	further advised that unless 	you
amended the charge to 	state a prima 	facie case, 	or withdrew it
prior to August 26, 	1991, 	the charge would be dismissed.
I 	received your 	letter of August 	26 	which memorialized 	the
arguments 	which you 	had presented prior 	to 	my warning 	letter.
The warning 	letter addressed most 	of 	those 	arguments. 	You 	also
state that, 	rather than utilize the 	"totality of conduct" 	test,
your charge 	should have been 	considered as 	a per 	se violation
based 	upon 	insisting upon bargaining on 	illegal 	subjects.
However, 	for the reasons 	given in the warning letter, 	you have
not 	shown the 	subjects 	of 	the proposals 	to be 	illegal 	based on
failure to 	sunshine.
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Right 	to Appeal
Pursuant to Public 	Employment Relations 	Board regulations, 	you
may obtain a review of this 	dismissal 	of 	the 	charge by 	filing an
appeal 	to the 	Board 	itself within twenty 	(20) 	calendar days 	after
service of this dismissal 	(California Code of Regs., 	tit. 	8,
sec. 	32635(a)). 	To be timely filed, 	the original and five copies
of 	such 	appeal 	must be 	actually 	received by 	the 	Board 	itself
before the close of business 	(5:00 p.m.) 	or 	sent by telegraph,
certified or Express 	United 	States 	mail 	postmarked 	no 	later 	than
the 	last date 	set for filing 	(California Code of Regs., 	tit. 	8,
sec. 	32135). 	Code of Civil Procedure section 	1013 	shall apply.
The Board's address 	is:
Public 	Employment Relations 	Board
1031 	18th Street
Sacramento, 	CA 95814
If you 	file a timely appeal of the refusal 	to 	issue a complaint,
any other party may 	file with 	the 	Board 	an original 	and 	five
copies 	of 	a 	statement 	in opposition within twenty calendar days
following the date of 	service of 	the 	appeal 	(California Code of
Regs., 	tit. 	8, 	sec. 	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 California Code of Regs., 	tit. 	8,
sec. 	32140 	for the required contents 	and a 	sample form.) 	The
document will 	be 	considered properly 	"served" 	when personally
delivered 	or deposited 	in the 	first-class 	mail postage paid 	and
properly 	addressed.
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 	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 	(California 	Code 	of
Regs., 	tit. 	8, 	sec. 	32132).

Final 	Date
If no appeal 	is 	filed within the 	specified time 	limits, 	the
dismissal will 	become 	final when the 	time 	limits 	have 	expired.
Sincerely,
JOHN W. 	SPITTLER
General 	Counsel
By Bernard 	McMonigle
Regional 	Attorney
Attachment

STATE OF CALIFORNIA 	PETE WILSON, Governor
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
Headquarters Office
1031 18th Street
Sacramento, CA 	95814-4174
(916) 322-3088
August 	19, 	1991
Ron 	Yank
44 	Montgomery 	Street
Suite 	400
San Francisco, 	CA 	94104
RE: 	California Department of Forestry Employees' 	Association.
Local 2881. 	IAFF v. 	State of California 	(DPA)
Unfair Practice Charge No. 	S-CE-505-S
WARNING 	LETTER
Dear Mr. 	Yank:
On July 	16, 	1991, 	the California Department of Forestry
Employees' 	Association 	(CDFEA) 	filed the above-referenced charge
alleging violations of Government Code sections 	3519(b) 	and 	(c).
Specifically, 	CDFEA alleged that 	"the 	state 	employer has 	violated
the 	Dills Act 	by not 	complying with 	section 	3523 	and has 	violated
section 	3519 	by 	insisting 	on negotiating about 	said 	state
employer proposals 	even though 	they have 	not been 	sunshined."
Your charge 	states the following: 	On or about March 20, 	1991,
CDFEA 	submitted 	its 	initial bargaining proposals 	for 	state
response 	and public 	comment 	in accordance with Government Code
section 	3523. 	The 	employer's 	response was 	also processed 	in
accordance with Government Code 	section 3523. 	The 	employer's
original proposals were attached to a 	letter dated April 	4, 	1991.
On June 	18, 	1991, 	the employer presented 	"dozens of proposals,
many 	of which were blatant 	takeaways 	with 	respect 	to monetary 	and
other rights 	and benefits 	existing both under the 	memorandum 	of
understanding 	then 	in existence 	and 	in existing 	as 	customs 	and
practices 	as well." 	Your charge goes 	on to 	state 	"those
counterproposals 	could in no 	fair 	sense be 	considered to 	have
been 	identified 	in any prior documents 	submitted 	by 	the 	State 	of
California with 	reference 	to bargaining unit 	8 	at 	any public
meeting or publicly announced presentation, 	within 	the meeting 	of
Government Code 	section 3523."
Government 	Code 	section 	3523 	states 	in relevant part:
(a) 	All 	initial meet and 	confer proposals 	of
recognized 	employee 	organizations 	shall 	be
presented to the 	employer at 	a public
meeting, 	and 	such proposals 	thereafter 	shall
be a public 	record.

Ron 	Yank
August 	19, 	1991
Page 2
All 	initial 	meet 	and 	confer proposals 	or
counterproposals 	of 	the 	employer 	shall 	be
presented 	to 	the 	recognized 	employee
organization at a public 	meeting, 	and 	such
proposals 	or 	counterproposals 	thereafter
shall be a public 	record.
(c) 	Forty-eight hours 	after any proposal
which 	includes 	any 	substantive 	subject which
has 	not 	first been presented as proposals 	for
public 	reaction pursuant 	to 	this 	section 	is
offered 	during 	any 	meeting 	and 	conferring
session, 	such proposals and the position, 	if
any, 	taken thereon by the representatives 	of
the employer, 	shall be a public 	record.
Government Code section 3523(c), 	cited above, 	appears to provide
for a 	free exchange of proposals during negotiations, 	including
"any 	substantive 	subject which has 	not 	first been presented 	as
proposals 	for public reaction." 	Under 	section 	3523, 	there does
not appear to be a requirement that a proposal, 	except 	for
"initial meet 	and confer proposals", 	must be announced only at a
public 	meeting or publicly announced presentation. 	Subsection
(c) 	merely permits proposals 	on subjects 	not originally 	sunshined
and provides 	the proposals be made a public 	record after 	48
hours. 	Because you have not provided any 	factual 	data 	indicating
that this was 	not done, 	there does not appear to be any violation
of Government Code section 3523(c).
The 	failure to 	sunshine a proposal 	may be 	indicia of 	an intent
not to bargain under the 	"totality of 	conduct" 	test. 	(California
State University 	(1990) 	PERB Decision No. 	799-H.) 	In this case,
you have not 	shown a violation of 	the 	employer's 	objection under
section 3523(c). 	Accordingly, 	no indicia of a violation of the
obligation 	to 	bargain has 	been 	established.
For these reasons, 	the charge as presently written does 	not 	state
a prima 	facie 	case. 	If there are 	any 	factual 	inaccuracies 	in
this 	letter or any 	additional 	facts 	that would 	correct 	the
deficiencies 	explained above, 	please 	amend the 	charge
accordingly. 	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 must 	be 	signed 	under penalty 	of perjury by 	the 	charging
party. 	The 	amended 	charge must be 	served 	on the 	respondent 	and
the original proof of 	service must be 	filed with PERB. 	If 	I 	do
not 	receive 	an amended charge or withdrawal 	from you before

Ron Yank
August 	19, 	1991
Page 3
August 26, 	1991, 	I 	shall dismiss your charge. 	If you have any
questions, 	please call me at 	(916) 	322-3198.
Sincerely,
Bernard 	McMonigle
Regional 	Attorney
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