State of California (Department of General Services) (PERB 0976S)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
INTERNATIONAL UNION OF OPERATING
ENGINEERS,
Charging 	Party,
v.
STATE 	OF 	CALIFORNIA 	(DEPARTMENT
OF GENERAL 	SERVICES),
Respondent.
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) 	Case No. 	S-CE-617-S
PERB Decision No. 	976-S
February 23, 	1993
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Appearance: 	Van Bourg, 	Weinberg, 	Roger & Rosenfeld by Stewart
Weinberg, 	Attorney, 	for International Union of Operating
Engineers.
Before Blair, 	Chair; 	Hesse and Caffrey, 	Members.
DECISION AND 	ORDER
CAFFREY, 	Member: 	This 	case 	is before the Public Employment
Relations 	Board 	(Board) 	on appeal 	by 	the 	International 	Union of
Operating Engineers 	(IUOE) 	of 	a Board agent's 	dismissal 	(attached
hereto) 	of 	its unfair practice charge. 	In the charge, 	IUOE
alleged 	that 	the 	State 	of 	California 	(Department 	of 	General
Services) 	violated section 3519(a), 	(b) 	and 	(c) 	of the Ralph C.
Dills Act 	(Dills Act)1 by threatening 	to unilaterally impose a
1The Dills Act 	is 	codified at Government 	Code 	section 3512
et 	seq. 	Section 3519 	states, 	in pertinent part:
It 	shall 	be unlawful 	for the 	state to do any
of 	the 	following:
(a) 	Impose or threaten to 	impose 	reprisals
on employees, 	to discriminate or threaten to
discriminate against 	employees, 	or otherwise
to interfere with, 	restrain, 	or coerce
employees because 	of 	their exercise 	of 	rights
guaranteed by 	this 	chapter.

standby policy 	for employees 	of 	the Office 	of 	Telecommunications.
(b) 	Deny 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 	organization.
The 	Board has 	reviewed the dismissal, 	and 	finding 	it 	to be
free of prejudicial 	error, 	adopts 	it as 	the decision of 	the Board
itself.
The unfair practice 	charge 	in Case No. 	S-CE-617-S 	is 	hereby
DISMISSED WITHOUT LEAVE 	TO AMEND.
Chair Blair and Member Hesse 	joined 	in 	this 	Decision.
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STATE OF CALIFORNIA 	PETE W I L S O N , Governor
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
Headquarters Office
1031 18th Street
Sacramento, CA 95814-4174
(916) 322-3088
October 9, 	1992
Stewart 	Weinberg
Van Bourg, 	Weinberg, 	Roger
& 	Rosenfeld
875 	Battery 	Street
San Francisco, 	CA 	94111
Re: 	International Union of Operating Engineers v. 	State of
California 	(Department of Genera	- - l Services). 	Unfair
Practice Charge No. 	S-CE-617-S
DISMISSAL 	LETTER
Dear Mr. 	Weinberg:
I 	indicated to you, 	in my attached Warning 	letter 	dated
October 	2, 	1992, 	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 which would 	correct the
deficiencies 	explained 	in that 	letter, 	you should amend the
charge. 	You were 	further advised that, 	unless you amended the
charge to 	state 	a prima 	facie 	case or withdrew 	it 	prior 	to
October 9, 	1992, 	the charge would be dismissed.
I 	have 	not 	received 	either 	an amended 	charge 	or 	a 	request 	for
withdrawal. 	Therefore, 	I 	am dismissing the charge based on the
facts 	and 	reasons 	contained 	in my Warning 	letter.
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. 	(Cal. 	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 p.m.) 	or sent by telegraph,
certified 	or 	Express United 	States mail 	postmarked 	no 	later
than the 	last date set for filing. 	(Cal. 	Code of Regs., 	tit. 	8,
sec. 	32135.) 	Code of Civil Procedure section 	1013 	shall 	apply.
The Board's address 	is:
C..

S-CE-617-S
October 9, 	1992
Page 2
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 	(20) 	calendar
days following the date of service of the appeal. 	(Cal. 	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 Cal. 	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 	(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. 	(Cal. 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,
ROBERT THOMPSON
Deputy General Counsel
By Bernard McMonigle
Regional Attorney
Be choid
Enclosure
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STATE OF CALIFORNIA 	PETE WILSON. Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
1031 18th Street, Room 102
Sacramento, CA 95814-4174
(916) 322-3198
October 2, 	1992
Stewart 	Weinberg
Van Bourg, 	Weinberg, 	Roger & Rosenfeld
875 	Battery 	Street
San Francisco, 	CA 	94111
Re: 	International Union of Operating Engineers v. 	State of
California 	(Department 	of 	General 	Services)
Unfair 	Practice 	Charge No. 	S-CE-617-S
WARNING 	LETTER
Dear Mr. 	Weinberg:
On July 2, 	1992, 	you 	filed the above-referenced charge alleging
violations of Government Code section 3519(a), 	(b) 	and 	(c).
Specifically, 	you have alleged that 	"the 	employer 	threatens 	to
unilaterally 	impose 	a 	stand-by policy."
Your charge reveals the following. 	On June 16, 	1992, 	Department
of 	General 	Services 	Labor Relations 	Officer Bill 	Denny met with
Dennis 	Bonnifield of 	the 	International 	Union of 	Operating
Engineers 	(IUOE). 	Mr. 	Denny informed Mr. 	Bonnifield that 	"due to
operational 	needs, 	the Department 	of Telecommunications desired
the ability 	to 	continue 	the stand-by policy." 	Mr. 	Denny also
informed Mr. 	Bonnifield that he had sent 	a 	letter to 	the union on
October 19, 	1992, 	inviting the union to meet and confer regarding
the stand-by policy. 	However, 	according to the 	IUOE, 	at no time
prior 	to 	June 	16 	did 	the 	Respondent 	offer 	to meet 	and 	confer with
regard to the 	stand-by policy. 	You state 	that 	in May 1991, 	ATAM,
the 	former 	exclusive 	representative 	for 	this bargaining unit,
entered 	into an agreement 	for a 	stand-by policy. 	That 	agreement
became a part 	of 	the MOU then 	in effect 	and expired 	shortly
thereafter. 	Since the 	expiration of 	the prior agreement, 	the
IUOE 	and 	the 	state 	employer have negotiated a new agreement.
According 	to your charge, 	the 	stand-by proposal 	has 	never been
placed on 	the 	table 	nor made 	a part 	of 	the package voted on by
the membership. 	You 	indicate 	that 	at 	no 	time during negotiations
did Respondent 	make 	any proposals 	concerning 	stand-by policy 	or
the 	continuation of 	the 	old 	stand-by policy. 	The 	stand-by policy
was 	not part 	of 	the 	last, 	best and final proposal 	to the Charging
Party by Respondent. 	You allege that 	"at 	the present 	time, 	the
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October 2, 	1992
Page 2
employer threatens 	to unilaterally impose a stand-by policy in
the absence of a legitimate or valid meeting in conferring with
the Charging Party, 	thus depriving the Charging Party the right
to represent 	its members and depriving the members of the right
to be represented by the exclusive representative."
I telephoned you on September 25, 	1992, 	to discuss this charge.
However, 	you were not in your office and I left a message. 	As of
this date I have not received a telephone call 	from you.
A unilateral 	change occurs when the employer breaches or
otherwise alters a party's collective bargaining agreement or its
own established past practice and the employer does so without
giving the exclusive representative notice and an opportunity to
bargain. 	Grant Joint Union High School District 	(1983) 	PERB
Decision No. 	196. 	Your charge as written states no facts which
demonstrate that the employer has 	in fact made a change or
imposed a stand-by policy. 	Nor have you stated any facts which
would indicate that the employer has made a definite decision to
implement a 	stand-by policy and has presented the union with a
fait accompli. 	The quote that you attribute to Mr. 	Denny
indicates 	that 	the department 	"desired the ability to continue
the stand-by policy." 	Such a statement appears to be less than
an implementation of the policy. 	It appears that the union has
also interpreted the policy as not yet being in effect as you
have characterized the employer's action as a threat to make a
unilateral 	change. 	I am aware of no case law which would support
the finding of a violation for such a 	"threat." 	Accordingly,
this 	charge 	should be dismissed.
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 additional 	facts which would correct the
deficiencies explained above, 	please 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 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 October 9, 	1992, 	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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