State of California (Department of Personnel Administration) (California Union of Safety Employees) (PERB 1145S)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

CALIFORNIA UNION OF SAFETY )

EMPLOYEES, )
. )
Charging Party, ) Case No. S-CE-756-S
) |
Vv. ) PERB Decision No. 1145-S
) _
STATE OF CALIFORNIA (DEPARTMENT ) March 8, 1996
OF PERSONNEL ADMINISTRATION) , )
)
Respondent. )
)
Appearances: Carroll, Burdick and McDonough by Gary M. Messing,
Attorney, for California Union of Safety Employees; lLinda’A.

Mayhew, Labor Relations Counsel, for State of California
(Department of Personnel Administration).

Before Caffrey, Chairman; Garcia and Johnson, Members.
DECISION

CAFFREY, Chairman: This case is before the Public
Employment Relations Board (PERB or Board) on appeal of a Board
agent's partial dismissal (attached) of an unfair practice charge
filed by the California Union of Safety Employees (CAUSE). In
its charge, CAUSE alleged that the State of California
(Department of Personnel Administration) (State or DPA) violated
section 3519(a), (b) and (c) of the Ralph C. Dills Act (Dills

Act)* when it unilaterally changed released time rights,

“The 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

transferred the work of 	the California State Police 	(CSP) 	to
another 	bargaining 	unit 	and 	unlawfully 	delegated 	responsibility
to negotiate 	from the State 	to 	individual 	departments.2
The Board has 	reviewed 	the 	entire 	record 	in 	this 	case,
including 	CAUSE'S 	original 	and amended unfair practice 	charge,
the warning and dismissal 	letters, 	CAUSE'S 	appeal 	and DPA's
response 	thereto. 	The Board 	finds 	the warning and dismissal
letters 	to be 	free 	of prejudicial 	error and adopts 	them as 	the
decision 	of 	the Board itself.
CAUSE'S 	APPEAL
In dismissing 	the 	charge 	the 	Board agent 	concluded 	that 	the
facts 	presented by 	CAUSE 	allege a unilateral 	transfer of
bargaining unit 	work 	rather than an unlawful modification of 	a
bargaining unit. 	CAUSE addresses 	only this 	issue 	on appeal,
contending 	that 	the 	Board agent 	erred 	in 	finding 	that 	the 	State's
actions 	constitute a 	transfer of bargaining unit work, 	an
allegation which must be deferred to 	the parties' 	contractual
to interfere with, 	restrain, 	or coerce
employees because 	of 	their exercise 	of 	rights
guaranteed by this 	chapter. 	For purposes 	of
this subdivision, 	"employee" 	includes an
applicant 	for employment 	or 	reemployment.
(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.
2A complaint 	was 	issued 	concerning 	certain allegations 	in
CAUSE'S 	charge 	involving alleged unilateral 	changes 	in 	released
time provisions 	of 	the parties' 	memorandum of understanding
(MOU).
22

grievance procedure. 	Instead, 	CAUSE argues 	that 	the State's
actions 	constitute 	an unlawful 	modification 	of 	a bargaining unit
by transferring Unit 	7 	CSP positions 	to Unit 	5, 	which is
comprised of 	California Highway Patrol 	(CHP) 	officers. 	CAUSE
states 	that 	CSP 	employees 	remain 	in 	their 	original 	positions
performing 	the 	same Unit 	7 	duties 	they did prior to 	the merger,
but 	claims 	that 	the State 	intends 	to move 	these 	employees 	to Unit
5 	upon completion of 	certain training. 	CAUSE 	contends 	that 	PERB
has 	exclusive 	jurisdiction over 	this 	unlawful 	unit modification,
jurisdiction which 	cannot 	be 	deferred 	or divested. 	CAUSE 	argues
that 	the 	State may not modify a bargaining unit 	without 	complying
with 	PERB 	regulations 	which 	specify 	the procedure 	for unit
modification.
DPA responds 	by 	supporting 	the 	Board agent's 	determination
that 	this matter is 	subject 	to deferral 	to the parties'
contractual 	grievance procedure. 	DPA asserts 	that 	CSP positions
have 	been placed under 	the management 	and administration 	of 	the
CHP, 	but 	that 	no 	classifications have been transferred 	from
Unit 	7 	to Unit 	5. 	DPA contends 	that 	CSP officers will 	remain in
Unit 	7 	classifications until 	they participate 	in the 	training
necessary 	to make 	them eligible 	to 	transition or promote 	into a
CHP 	classification. 	DPA asserts 	that 	the provisions 	of 	the
parties' 	MOU cover this dispute and, 	therefore, 	it 	is subject to
deferral 	to the parties' 	grievance procedure.
3

DISCUSSION
The 	sole 	question 	raised by CAUSE 	on appeal 	to 	the 	Board 	is
whether 	the 	facts 	alleged 	in CAUSE'S 	charge 	demonstrate 	that 	the
State unlawfully modified state bargaining units, 	or whether the
facts 	manifest 	an alleged unilateral 	transfer 	of 	work 	from one
bargaining unit 	to another. 	CAUSE 	correctly states 	in 	its
appeal:
The 	removal 	of 	job 	classifications 	from a
bargaining unit 	or 	the 	transfer 	of
classifications 	from one unit 	to another are
governed by PERB 	regulations.
(CAUSE'S appeal, 	p. 	8.)
However, 	CAUSE does not assert 	that 	job classifications are being
removed or transferred by the 	State 	in this 	case. 	Instead, 	CAUSE
states that:
Although 	employees 	in both units 	are 	now CHP
employees due 	to the merger, 	their status as
Unit 	7 or Unit 	5 	employees 	is unaffected.
Unit 	7 	employees 	continue 	to perform the 	same
duties 	and 	functions 	as 	they did prior 	to 	the
merger, 	as do Unit 5 employees.
(CAUSE'S appeal, 	p. 	4.)
CAUSE 	then asserts 	that 	the 	State 	intends 	to offer training 	to
affected Unit 	7 	employees, 	who will become CHP officers and whose
positions will 	be moved to Unit 	5 	upon the 	completion of 	that
training.
The 	allegations 	presented by CAUSE 	do not 	describe 	a
modification of 	the bargaining units 	involved. 	On appeal 	CAUSE
clearly states 	that 	the 	status 	of 	the Unit 	7 	employees has not
been affected by the merger. 	The assertion that 	the 	State
intends 	to transfer CSP officers 	into Unit 	5 	CHP positions 	in the
44

future does 	not 	demonstrate 	that 	a bargaining unit 	is 	being
modified by 	the 	removal 	or 	transfer of 	job 	classifications.
In its 	charge, 	CAUSE alleges 	that 	several Unit 	5 	CHP
officers 	have been assigned 	duties 	that 	were previously performed
by Unit 	7 	CSP officers, 	primarily duties 	of 	the Bureau of
Protective Services. 	As 	discussed by the Board agent, 	these
facts 	demonstrate 	that 	the 	State may have 	assigned 	the work
previously undertaken by Unit 	7 	employees 	to Unit 	5 	CHP
employees, 	but 	the 	reassignment 	of work does not 	represent a unit
modification. 	The performance by Unit 	5 	employees 	of work
previously performed by Unit 	7 	employees 	is 	correctly
characterized by 	the 	Board agent 	as 	an allegation 	that 	the 	State
unilaterally 	transferred work 	from 	one 	bargaining 	unit 	to
another.
The 	Board has 	held 	that 	the 	transfer of work 	from one
bargaining unit 	to another affects 	the wages, 	hours 	and working
conditions 	of 	employees 	in the 	former unit. 	(Rialto Unified
School District 	(1982) 	PERB Decision No. 	209.) 	The parties here
specifically agreed 	in Article 	20 	of 	the MOU to negotiate 	over
the 	impact 	of 	any 	changes 	in working 	conditions 	proposed by 	the
State. 	Accordingly, 	a proposal by the State to transfer
bargaining unit 	work 	is 	covered by Article 	20.
In Lake 	Elsinore School District 	(1987) 	PERB Decision
No. 	646 	(Lake Elsinore). 	the Board held that section 3541.5(a) 	of
the 	Educational 	Employment Relations Act, 	which contains 	language
identical 	to Dills Act section 3514.5(a), 	establishes a
55

jurisdictional 	rule 	requiring 	that 	a 	charge be 	dismissed and
deferred to arbitration if: 	(1) 	the grievance machinery of 	the
agreement 	covers 	the matter at 	issue 	and 	culminates 	in binding
arbitration; 	and, 	(2) 	the conduct complained of in the unfair
practice 	charge 	is prohibited by the provisions 	of 	the agreement
between the parties.
As 	correctly determined by the Board agent, 	the 	Lake
Elsinore deferral 	standard has been met 	in this 	case. 	First, 	the
grievance machinery provides 	for 	resolution of 	this 	dispute 	and
culminates 	in binding arbitration. 	Second, 	the conduct
complained of 	in the 	charge, 	that 	the State 	changed working
conditions 	by unilaterally 	transferring 	work 	to 	another
bargaining unit 	and refusing to bargain over the 	change, 	is
arguably prohibited by Article 20. 	Therefore, 	PERB 	is without
jurisdiction 	over 	this matter and 	it must be dismissed and
deferred 	to 	the 	contractual 	grievance 	and arbitration procedure.
CAUSE did not 	appeal 	the 	Board agent's 	remaining 	findings.
Therefore, 	it 	is unnecessary for the Board to address 	them.
ORDER
The partial 	dismissal 	of 	the unfair practice 	charge 	in Case
No. 	S-CE-756-S 	is hereby AFFIRMED.
Member Johnson 	joined 	in 	this 	Decision.
Member Garcia's 	concurrence begins 	on page 	7.
66

GARCIA, 	Member, 	concurring: 	After review of this case, 	it
is my conclusion that 	the parties' 	agreement 	is 	susceptible 	to an
interpretation 	that Article 	6 	and Article 	20 	cover the 	conduct
alleged 	to be 	an unfair practice 	and 	this 	case must 	be 	deferred
until 	the parties 	exhaust 	their 	contractual 	grievance process.
7
7

STATE CF CALIFORNIA 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Office of the General Counsel
1031 18th Street
Sacramento, CA 95814-4174
(916) 322 3198
October 5, 	1995
Gary Messing
Timothy K. 	Talbot
Carroll, 	Burdick and McDonough
400 Capitol Mall, 	Suite 1400
Sacramento, 	CA 95814
Re: 	California Union of Safety Employees v. 	State of California
(Department 	of 	Personnel Administration)
Unfair Practice Charge No. 	S-CE-756-S
PARTIAL DISMISSAL 	LETTER
Dear Messrs. 	Messing and Talbot:
The above-referenced charge alleges, 	in part, 	that the State of
California, 	Department of Personnel Administration 	(State)
unilaterally changed the 	released time 	rights under Article
2.1(e) 	and 2.9 of 	its collective bargaining agreement with the
California Union of Safety Employees 	(CAUSE). 	In addition, 	the
State unilaterally transferred the work of 	the California State
Police to another bargaining unit, 	refused to bargain over this
transfer and the 	impact of the State's change in released time,
and unlawfully delegated 	responsibility to negotiate 	from 	the
State to individual departments. 	This conduct is alleged to
violate sections 3519(a), 	(b), 	and 	(c) 	of the Ralph C. Dills Act.
I indicated to you, 	in my attached letter dated August 4, 	1995,
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 which would correct 	the
deficiencies explained in that 	letter, 	you should amend the
charge. 	You filed a first amended charge on August 30, 	1995.
The 	amended charge 	contains much of 	the 	same 	information
contained in the original charge. 	However, 	the following
information or argument 	is new.
The amended charge argues 	that 	the State has unilaterally
modified a bargaining unit by placing State Police officers 	in
the Highway Patrol unit 	(bargaining unit 5). 	However, 	this
characterization does not match the 	facts presented, 	which
indicate 	that 	there has been no attempt 	to place the State 	Police
classifications 	in the Highway Patrol bargaining unit. 	Rather,
employees 	in the State Police have been made members of 	the
Highway Patrol 	and given the opportunity to transition in to 	the
Highway Patrol classifications. 	If an employee chooses to

transition and meets 	the 	applicable 	requirements, 	he 	or 	she 	would
then become 	a member of 	bargaining unit 	5. 	These 	facts 	and 	those
concerning 	the 	assignment 	of 	Highway 	Patrol 	officers 	to 	BOPS
describe 	an 	alleged 	transfer 	of 	bargaining 	unit 	work 	as 	discussed
in my August 	4 	letter. 	This 	alleged 	transfer of work 	is 	covered
by 	the 	collective 	bargaining 	agreement 	which was 	in 	effect 	when
these 	events 	occurred. 	Accordingly this 	allegation must 	be
deferred 	to 	binding 	arbitration 	and 	dismissed.
Charging 	party asserts:
[t]he 	delegation 	of 	bargaining 	to 	other
departments 	may 	result 	in 	the 	presentation 	of
new proposals 	that 	were 	not 	previously
sunshined as 	required by the 	Dills Act. 	The
potential 	for 	overlapping 	and 	inconsistent
proposals 	also 	make 	it 	extremely difficult,
if not 	impossible, 	for the parties 	to obtain
a 	"total 	tentative 	agreement." 	(Amended
unfair practice charge, 	p. 	15.)
In addition, 	the 	charge 	asserts 	that 	delegation 	is 	tantamount 	to
an 	enlargement 	of 	the 	State's 	bargaining 	team 	in violation 	of 	the
ground rules. 	These 	allegations 	are 	speculative. 	There 	is 	no
evidence 	that 	any of 	these 	problems 	have 	actually occurred.
Accordingly, 	this allegation must 	be 	dismissed.
Therefore, 	I 	am dismissing 	the 	allegations 	contained in this
charge 	that 	the 	State 	unilaterally 	changed 	the 	released 	time
rights under Article 	2.1 (e) 	and 2.9, 	transferred the work of 	the
California 	State 	Police 	to 	another bargaining unit, 	refused 	to
bargain over 	this 	transfer 	and 	the 	impact 	of 	the 	State's 	change
in 	released 	time, 	and 	unlawfully delegated 	responsibility 	to
negotiate 	from the 	State 	to 	individual 	departments 	based 	on 	the
facts 	and reasons 	contained 	in 	this 	letter 	and my August 	4, 	1995
letter.
Right 	to Appeal
Pursuant 	to 	Public 	Employment 	Relations 	Board regulations, 	you
may obtain 	a 	review of 	this 	dismissal 	of 	certain allegations
contained 	in 	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:
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 Robert 	Thompson
Deputy 	General 	Counsel
Attachment
cc: 	Roy Chastain, 	Esq.

STATE OF CALIFORNIA 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
@ Office of the General Counsel
1031 18th Street
Sacramento, CA 95814-4174
(916) 322-3198
•
August 	4, 	1995
Gary 	Messing
Timothy K. 	Talbot
Carroll, 	Burdick and McDonough
400 	Capitol Mall, 	Suite 	1400
Sacramento, 	CA 95814
Re: 	California Union of 	Safety Employees v. 	State of 	California
(Department 	of 	Personnel 	Administration)
Unfair 	Practice 	Charge 	No. 	S-CE-756-S
WARNING 	LETTER
Dear Messrs. 	Messing and Talbot:
The 	above-referenced charge 	alleges, 	in part, 	that 	the 	State of
California, 	Department 	of 	Personnel Administration 	(State)
unilaterally 	changed 	the 	released 	time 	rights 	under Article
2.1(e) 	and 2.9 	of 	its 	collective 	bargaining 	agreement 	with 	the
California Union of Safety Employees 	(CAUSE). 	In addition, 	the
State 	unilaterally 	transferred 	the 	work 	of 	the 	California 	State
Police 	to 	another bargaining unit, 	refused 	to bargain over 	this
transfer 	and 	the 	impact 	of 	the 	State's 	change 	in released 	time,
and 	unlawfully 	delegated 	responsibility 	to 	negotiate 	from 	the
State 	to 	individual 	departments. 	This 	conduct 	is 	alleged to
violate sections 3519(a), 	(b), 	and 	(c) 	of the Ralph C. 	Dills Act.
My 	investigation 	revealed 	the 	following 	information. 	CAUSE 	is
the 	exclusive 	representative 	of 	State 	bargaining unit 	7 	which
contains 	approximately 	5,700 	State 	employees 	working 	in 	175 	job
classifications 	in over 	75 	different 	State 	agencies 	and
departments 	scattered at 	over 	74 0 	work 	locations 	throughout 	the
State. 	Of 	these, 	205 	are 	California 	State police 	officers 	and 	51
are 	California 	State 	police 	sergeants.
CAUSE 	and 	the 	State 	are 	parties 	to 	a 	collective bargaining
agreement 	with effective 	dates 	of 	July 	1, 	1992 	through June 	30,
1995. 	The 	contract provides 	in Article 	6 	for a grievance process
that 	ends 	in binding arbitration. 	Article 	20 	- 	Entire Agreement
provides 	a 	mechanism 	for 	notice 	to 	CAUSE 	and bargaining 	over 	the
impact 	of 	changes 	made 	by 	the 	State 	during 	the 	term of 	the
agreement.
The 	contract 	also 	contains 	several 	sections 	dealing with 	released
time 	including Articles 	2.1 (e) 	and 2.9. 	Article 	2.1 provides 	in

relevant 	part:
(e) 	Upon request 	of 	a Unit 	7 	employee a CAUSE
representative 	shall 	be 	allowed 	reasonable
release 	time 	for 	the 	purposes 	of 	representing
Unit 	7 	employees 	in 	"Skelly" 	hearings 	during
working 	hours 	without 	loss 	of 	compensation,
subject 	to prior 	notification 	and 	approval 	by
his/her 	immediate 	supervisor.
Article 	2.9 	- 	Employee 	Organization Release 	Time 	provides 	in
pertinent 	part:
a. 	Employees 	in Unit 	7 may use vacation,
holiday credit, 	compensating 	time 	off 	or
absence 	without 	pay 	for purposes 	related 	to
employee 	organization 	matters 	provided 	such
time 	away 	from 	the 	job 	does 	not 	interfere
with employers' 	[sic] 	efficient operations.
Employees 	must 	request 	release 	from the
appropriate 	staff 	manager 	or designee.
b. 	Employees may 	request 	the 	department
head's 	approval 	for 	leave 	without 	pay 	for 	up
to one 	(1) 	year 	for purposes 	related to
employee 	organization matters. 	Such 	leave
without 	pay 	would 	not 	unreasonably 	be
withheld.
On June 	27, 	1995 	the Office 	of 	the Director of 	the Department 	of
Personnel 	Administration 	sent 	a 	memorandum 	to 	all 	agency
secretaries 	and 	department 	directors 	which 	indicates 	in pertinent
part:
5. 	Represented employees 	may not 	receive
union 	leave, 	except 	where 	agreed to 	in
negotiation 	ground 	rules 	for 	union 	bargaining
teams. 	This means 	all 	pending and 	future
union 	leave 	requests 	may not 	be 	approved.
All 	current 	union 	leave 	must 	be 	terminated,
and 	all 	represented 	employees 	currently 	on
union 	leave 	must 	return 	to work;
6. 	Union 	time 	banks 	consisting of 	State
donated 	time 	off 	must 	be 	terminated, 	and all
represented 	employees 	currently 	on 	leave
using 	this 	time 	must 	return 	to work;
7. 	Union 	time 	banks 	consisting of 	leave 	time
donated 	by 	represented 	employees 	may 	not 	be
used, 	and all 	represented employees 	currently
using 	this 	leave 	must 	return 	to work.
Donations 	of 	employee 	leave 	time 	cannot 	be
accepted after June 	30, 	1995, 	and any balance
of 	donated 	leave 	time 	shall 	remain 	in 	the
account until 	agreements 	are 	reached; 	and

8. 	The 	entire 	agreement 	clauses 	of 	the
expired 	collective 	bargaining 	agreement 	are
superseded by Government 	Code 	section 	3516.5
of 	the Ralph C. 	Dills Act. 	This means 	that
any department 	proposing 	a 	change 	in 	a 	work
rule 	or policy 	that 	is 	within 	the 	scope 	of
representation 	and not 	a 	management 	right,
such as budget, 	layoff, 	or organization, 	must
obtain 	Department 	of 	Personnel 	Administration
delegation 	to 	notice 	and meet 	and 	confer 	over
the 	policy 	itself 	as 	well 	as 	its 	impact 	on
the 	terms 	and 	conditions 	of 	employment 	of
represented 	employees.
Approximately 	4,200 	California 	Highway 	Patrol 	officers 	are
included 	in 	Bargaining Unit 	5 	which 	is 	exclusively 	represented 	by
the 	California Association of Highway Patrolmen 	(CAHP).
California 	State 	Police 	(CSP) 	responsibilities 	for protection of
life 	and property and 	enforcement 	of 	State 	laws 	on 	and around
State property, 	including patrol 	of 	the 	State 	Capitol 	and other
State 	property, 	have 	been 	exclusively the 	domain of 	Unit 	7
employees.
Discussion 	regarding 	the 	merger 	of 	the 	CSP 	and 	the 	California
Highway Patrol 	(CHP) 	began 	in earnest 	in 1994. 	In January and
February 	1995 	CHP officials 	met 	with CAUSE 	representatives 	and
CSP members 	of Unit 	7. 	CAUSE provided written and oral 	testimony
before 	the 	Milton Marks 	Commission 	concerning 	the 	proposed merger
and its effects on Unit 	7 on March 3, 	1995 	and March 16, 	1995
respectively. 	CHP 	representatives 	dispute 	some 	of 	the 	CAUSE
statements.
On March 28, 	1995, 	CAUSE 	representatives 	attended a meeting with
CHP officials 	and CSP employees. 	According 	to CAUSE, 	CHP
officials 	indicated 	that 	after 	the 	merger, 	CSP 	employees 	would be
moved 	into Unit 	5.
CAUSE 	and 	the 	State 	did 	reach 	agreement 	on 	three 	side 	letters
concerning 	issues 	related 	to 	the 	merger. 	One of 	these
agreements, 	signed May 16, 	1995, 	states in part that:
CSP 	officers 	completing 	the 	CHP's 	Phase 	III
(Advanced Patrol 	Program) 	academic 	training
and 	CSP 	sergeants 	completing 	the 	CHP's 	Phase
III 	(Supervisory/Managerial 	Program) 	academic
training 	shall 	be 	returned 	and 	remain 	in
their previous 	geographical 	area 	of
assignment 	with 	their 	same 	duties. 	CSP
officers 	and 	sergeants 	not 	completing 	the
applicable 	CHP 	Phase 	III 	training will 	remain
in 	their 	current 	area 	of 	geographical
assignment 	with 	their 	same 	duties 	guaranteed
under 	the 	Unit 	7 	Memorandum of 	Understanding.

At 	a meeting on May 4, 	1995, 	CAUSE 	informed both CHP and DPA that
it 	believed all 	CSP positions 	should 	remain 	in Unit 	7 	and 	that
the 	merger would not 	affect 	their unit 	status. 	CAUSE 	reiterated
this position 	in a meeting on June 	5, 	1995, 	at which time
officials 	from DPA, 	CHP, 	and CAHP claimed otherwise. 	CAUSE
asserts 	that 	at 	a 	June 	13th bargaining session, 	DPA labor
relations 	officer Mike 	Navarro 	stated 	that 	CHP 	officers 	and
sergeants 	would become members 	of 	the 	CHP 	and move 	into Unit 	5,
and 	that 	Navarro 	further 	stated 	that 	the 	State 	does 	not
"recognize" 	work as belonging 	to a bargaining unit. 	The merger
was effective July 1, 	1995.
CHP 	officers 	from unit 	5 	have 	been 	hired 	into positions 	that 	have
traditionally been held by 	CSP 	officers. 	As 	early as 	June 	7,
1995, 	one 	CHP 	officer had been 	assigned 	to 	a Bureau of 	Protective
Service 	(BOPS) 	position previously occupied by a 	CSP 	officer.
Later, 	according to CAUSE, 	three other CSP officers were
transferred 	out 	of 	BOPS 	to 	other 	assignments 	and were 	replaced 	by
CHP officers. 	CAUSE 	also 	alleges 	the 	governor's 	security detail
on one 	recent 	trip was 	comprised of 	CHP officers 	plus 	one 	CSP
sergeant, 	while 	formerly 	security 	for 	the 	governor was 	provided
exclusively by 	CSP 	officers.
The 	allegations 	contained 	in 	this 	charge 	that 	the 	State
unilaterally 	changed 	the 	released 	time 	rights 	under Article
2.1(e) 	and 	2.9, 	transferred 	the work of 	the 	California 	State
Police 	to 	another bargaining unit, 	refused 	to bargain over this
transfer 	and 	the 	impact 	of 	the 	State's 	change 	in 	released 	time,
and 	unlawfully 	delegated 	responsibility 	to 	negotiate 	from 	the
State 	to 	individual 	departments 	do not 	state 	a prima 	facie
violation 	of 	the 	Dills Act 	for 	the 	following reasons.
Section 3514.5(a) 	of 	the Ralph C. 	Dills Act 	(Dills Act) 	states,
in pertinent part, 	that 	PERB 	shall not:
Issue 	a 	complaint 	against 	conduct 	also
prohibited by 	the 	provisions 	of 	the
[collective 	bargaining 	agreement 	in 	effect]
between 	the 	parties 	until 	the 	grievance
machinery of 	the 	agreement, 	if 	it 	exists
and covers 	the 	matter at 	issue, 	has been
exhausted, 	either 	by 	settlement 	or binding
arbitration.
In Lake Elsinore 	School District 	(1987) 	PERB Decision No. 	646,
PERB 	held 	that 	section 	3541.5(a) 	of 	the 	Educational 	Employment
Relations Act, 	which contains 	language 	identical 	to
section 3514.5 (a) 	of 	the 	Dills Act, 	established a 	jurisdictional
rule 	requiring 	that 	a 	charge 	be 	dismissed and deferred 	if: 	(1)
the 	grievance 	machinery of 	the 	agreement 	covers 	the 	matter 	at
issue and culminates 	in binding arbitration; 	and, 	(2) 	the conduct
complained of 	in 	the 	unfair 	practice 	charge 	is 	prohibited by 	the
provisions 	of 	the 	agreement 	between 	the parties. 	PERB 	Regulation
32620(b)(5) 	(Cal. 	Code of Regs., 	tit. 	8, 	sec. 	32620(b)(5)) 	also

requires 	the 	investigating 	Board 	agent 	to 	dismiss 	a 	charge 	where
the 	allegations 	are 	properly 	deferred 	to 	binding 	arbitration.
These 	standards 	are met 	with 	respect 	to 	the 	allegations 	that 	the
State 	unilaterally 	transferred 	the 	work 	of 	the 	California 	State
Police 	to 	another 	bargaining 	unit 	and 	refused 	to 	bargain 	over 	the
transfer contained 	in this 	case. 	First, 	the grievance machinery
of 	the 	agreement/MOU covers 	the 	dispute 	raised by 	the 	unfair
practice 	charge 	and culminates 	in binding 	arbitration. 	Second,
the 	conduct 	complained of 	in 	this 	charge 	that 	the 	State
unilaterally 	transferred 	the 	work 	of 	the 	California 	State 	Police
to Bargaining Unit 	5 	and refused 	to bargain over 	it 	is 	arguably
prohibited by Article 	20 	of 	the 	MOU.
A unilateral 	change 	occurs 	when 	an official 	action 	has 	been
taken, 	not 	a 	subsequent 	date when 	the 	action becomes 	effective.
State of 	California(Department 	of 	Corrections) 	(1994) 	PERB
Decision No. 	1056-S. 	CAUSE was 	notified at 	several 	meetings
before 	July 	1, 	1995 	that 	the 	State 	intended 	to 	transfer State
Police 	employees 	to bargaining unit 	5. 	State 	representative
Navarro's 	alleged 	refusal 	to 	bargain 	over 	the 	transfer 	occurred
on June 	13, 	1995. 	Thus, 	these 	alleged violations happened during
the 	term 	of 	the 	agreement 	and 	are 	subject 	to 	the 	grievance 	and
arbitration 	procedure.
Accordingly, 	these 	allegations 	must 	be 	deferred 	to 	arbitration
and will 	be 	dismissed. 	Such 	dismissal 	is 	without 	prejudice 	to
the Charging Party's 	right, 	after arbitration, 	to 	seek a
repugnancy 	review by 	PERB 	of 	the 	arbitrator's 	decision 	under 	the
Dry Creek criteria. 	(See 	PERB Reg. 	32661 	[Cal. 	Code of Regs.,
- -tit. 	8, 	sec. 	32661]; 	Los Angeles Unified School District 	(1982)
PERB Decision No. 	218; 	Dry Creek Joint 	Elementary School 	District
(1980) 	PERB Order No. 	Ad-81a.)
With 	regard 	to 	the 	alleged unilateral 	changes 	in 	released 	time,
there 	is 	no 	evidence 	that 	the 	Tirapelle 	memorandum 	is 	being
interpreted 	to prevent 	unit 	7 	employees 	from using 	released 	time
under either Article 	2.1 (e) 	or 	2.9. 	This 	lack of 	evidence 	also
defeats 	the 	allegation that 	the 	State 	has 	refused 	to 	bargain 	over
the 	meaning or 	impact 	of 	the 	Tirapelle 	memorandum. 	Although 	the
subject 	of 	release 	time was 	discussed at 	the 	July 	11, 	1995
bargaining 	session, 	it 	is not 	apparent 	that 	the 	State 	refused 	to
bargain over 	this 	issue. 	Without 	more 	information, 	these 	alleged
changes 	do not 	state 	a prima 	facie 	violation of 	the 	Dills Act.
The 	final 	allegation 	to be 	discussed 	in 	this 	letter 	concerns 	the
statement 	in 	the 	Tirapelle 	memorandum 	that 	State 	departments 	must
obtain 	DPA 	approval 	to negotiate 	with 	the 	exclusive
representatives over changes. 	Dills Act 	section 3513 (j) 	defines
the 	State 	employer 	for purposes 	of 	bargaining as 	the 	Governor or
his 	designated 	representatives. 	DPA has 	acted as 	that 	designee.
As 	such, 	it 	may delegate 	this 	authority to State 	agencies 	or
departments, 	at 	its discretion. 	There 	is no evidence 	that 	such
delegation 	is 	either 	a 	subject 	within 	the 	scope 	of 	bargaining or

that 	this 	delegation 	has 	interfered with 	the 	State's 	obligation
to bargain 	in good faith. 	Accordingly, 	this 	allegation does not
state 	a 	prima 	facie violation of 	the 	Dills Act.
If 	there 	are 	any 	factual 	inaccuracies 	in 	this 	letter or 	any
additional 	facts 	which would 	require 	a 	different 	conclusion 	than
the one 	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 	filed with 	PERB. 	If 	I 	do not 	receive 	an 	amended charge
or withdrawal 	from you before August 	14, 	1995, 	I 	shall dismiss
the 	allegations 	that 	the 	State 	unilaterally 	changed 	the 	released
time 	rights 	under Article 	2.1(e) 	and 	2.9, 	transferred 	the 	work of
the 	California 	State 	Police 	to 	another bargaining unit, 	refused
to bargain over 	this 	transfer 	and 	the 	impact 	of 	the 	State's
change 	in 	released 	time, 	and unlawfully delegated 	responsibility
to 	negotiate 	from 	the 	State 	to 	individual 	departments 	contained
in your charge 	without 	leave 	to 	amend. 	If 	you 	have 	any
questions, 	please call me at 	(916) 	322-3198.
Robert 	Thompson
Deputy 	General 	Counsel