State of California (Department of Personnel Admistration (California State Employees Association/Service Employees International Union Local 1000) (PERB 1249S)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA STATE 	EMPLOYEES
ASSOCIATION, 	LOCAL 1000, 	SEIU,
AFL-CIO, 	CLC,
Charging 	Party,
v.
STATE OF CALIFORNIA 	(DEPARTMENT OF
PERSONNEL ADMINISTRATION),
Respondent.
)
)
)
)
) 	Case No. 	SA-CE-1007-S
PERB Decision No. 	1249-S
January 28, 	1998
)
))
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)
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Appearances: 	Anne M. 	Giese, 	Attorney, 	for California State
Employees Association, 	Local 1000, 	SEIU, AFL-CIO, 	CLC; Warren C.
Stracener, 	Labor Relations Counsel, 	for State of California
(Department of Personnel Administration).
Before Johnson, 	Dyer and Amador, 	Members.
DECISION
AMADOR, 	Member: 	This 	case is before the Public Employment
Relations 	Board 	(Board) 	on appeal 	from a Board agent's 	dismissal
(attached) 	of 	the California State Employees Association, 	Local
1000, 	SEIU, 	AFL-CIO, 	CLC's 	(Association) 	unfair practice charge.
As amended, 	the Association's 	charge alleges 	that 	the State of
California 	(Department 	of 	Personnel Administration) 	(State)
breached 	its 	duty 	to meet 	and 	confer 	in good 	faith with 	the
Association, 	thereby violating section 3519(a), 	(b) 	and 	(c) 	of
the Ralph C. 	Dills Act 	(Dills Act).1
1The Dills 	Act 	is 	codified at Government 	Code 	section 	3512
et seq. 	Section 3519 provides, 	in relevant part:
It 	shall be unlawful 	for the 	state to do any
of 	the 	following:

The 	Board has 	reviewed the 	entire 	record 	in 	this 	case,
including 	the 	original 	and amended unfair practice 	charge, 	the
warning and dismissal 	letters, 	the Association's 	appeal 	and the
State's 	response 	thereto. 	The Board 	finds 	the warning and
dismissal 	letters 	to be 	free 	from prejudicial 	error and adopts
them as 	the 	decision of 	the Board itself.
ORDER
The unfair practice 	charge 	in Case No. 	SA-CE-1007-S 	is
hereby DISMISSED WITHOUT LEAVE 	TO AMEND.
Members 	Johnson and Dyer 	joined 	in 	this 	Decision.
(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. 	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.
22

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
September 16, 	1997
Harry J. Gibbons, Staff Attorney-
Anne M. 	Giese, 	Staff Attorney
California State Employees Association
1108 "0" Street, Suite 327
Sacramento, 	CA 95814
Re: 	NOTICE OF DISMISSAL AND REFUSAL TO ISSUE COMPLAINT
California State Employees Association. 	Local 1000, 	SEIU,
AFL-CIO. 	CLC v. 	State of California 	(Department of Personnel
Administration)
Unfair Practice Charge No. 	SA-CE-1007-S
Dear Mr. Gibbons and Ms. Giese:
The above-referenced unfair practice 	charge was 	filed with the
Public Employment Relations Board 	(PERB or Board) 	on July 9,
1997. 	The charge alleges that the State of California 	(State)
breached the duty to meet and confer in good faith with the
California State Employees Association 	(CSEA or Union) 	imposed by
Government Code 	section 3517,1 in violation of Government Code
section 3519, subsections (a), 	(b) and (c).
I indicated to CSEA, 	in my attached letter dated August 19, 	1997,
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 August
26, 	1997, 	the charge would be dismissed. 	Your subsequent request
for additional time to file an amended charge was granted, 	and a
First Amended Charge was filed on September 2, 	1997.
The original 	charge 	focused 	exclusively on testimony given by
David Tirapelle, 	Director of the Department of Personnel
Administration 	(DPA),2 to the State Senate Public Employment and
Retirement Committee on April 14, 	1997. 	The State's unlawful
conduct was characterized as follows:
1The Ralph C. Dills Act 	(Dills Act), 	originally known as the
State Employer-Employee Relations Act 	(SEERA), 	is codified at
Government Code section 3512 et seq.
2DPA is the designated representative of the Governor for
purposes of collective bargaining.
, 	.
. 	.
.. 	~~ 	~~ ~-

Dismissal 	Letter
SA-CE-1007-S
September 16, 	1997
Page 	2
[B]y conditioning 	the 	Union's 	economic
demands 	on acceptance 	of 	the 	State's 	non-
economic proposals, 	by lacking the authority
to 	reach an 	agreement 	and mischaracterizing
the 	bargaining 	and 	appropriation process 	and
by 	lacking 	the 	financial 	ability 	to 	endeavor
to 	reach agreement.
As 	amended, 	the 	charge 	relies 	on the Tirapelle 	testimony for
evidence 	that 	the 	State 	has 	offered 	shifting 	justifications 	for
its 	refusal 	thus 	far to offer a 	salary increase 	in bargaining.
CSEA argues 	that 	the 	State 	first 	claimed money was 	not 	available,
even knowing of 	a 	$500 	million reserve, 	and 	later claimed a
salary 	increase 	could not 	be 	offered because 	it 	had not 	been
"appropriated," 	even while 	DPA and/or 	the 	Governor 	opposed 	the
appropriation 	of 	any money 	for 	a 	salary 	increase.
The 	amended 	charge 	also makes 	new allegations 	concerning public
statements 	made 	by both 	the 	Governor himself 	and his 	spokesperson
as 	evidence 	of 	bad 	faith bargaining.
CSEA first 	cites 	the 	Governor's 	statements 	on July 	17 	and August
8, 	1997, 	linking the 	issues of a pay raise 	for state employees to
a proposed 	income 	tax proposal 	he 	submitted 	to 	the 	Legislature,
as 	evidence 	of 	yet 	a 	third 	justification 	for 	refusal 	to offer a
salary increase. 	CSEA also 	cites 	the Governor's 	statements 	as
evidence 	of 	unlawful 	conditioning of 	a mandatory subject 	of
bargaining on resolution of 	a non-mandatory 	subject. 	Such
conduct, 	argues CSEA, 	is per se evidence of bad faith under Lake
Elsinore School District 	(1986) 	PERB Decision No. 	603.
Finally, 	CSEA cites 	statements made on August 	8, 	1997 by a
spokesperson for the Governor, 	which it quotes as 	follows:
if 	I were a CSEA member, 	I'd been 	(sic)
mighty hot 	[about 	not 	receiving a pay raise],
and 	I 	would 	run my out-of-touch union
leadership out 	of 	Dodge 	- - o r the 	DMV 	-- 	on a
rail.
CSEA offers 	the 	following 	theory with 	respect 	to 	the 	quoted
statement:
A reasonable 	person 	could 	infer 	from 	this
statement 	that 	the 	Governor might 	offer a pay
raise once 	CSEA is 	run out 	"on a rail." 	In
the alternative, 	a reasonable person could
conclude 	the 	Governor will 	continue 	his
refusal 	to bargain 	so 	long as 	CSEA remains
the exclusive 	representative. 	Because 	the
statement 	contains both a 	threat 	of 	reprisal
and a promise of benefit, 	the 	statement
violates 	the Dills Act. 	(Rio Hondo Community
(

Dismissal 	Letter
SA-CE-1007-S
September 16, 	1997
Page 3
College District 	(1980) 	PERB Decision No. 	128
(Rio Hondo).)
Shifting 	Justifications
The 	essence 	of 	CSEA's 	argument, 	as 	analyzed more 	fully in my
August 	19, 	1997 	letter, 	is that the State must be bargaining in
bad 	faith because 	they have 	not 	offered a wage 	increase 	in over
two years 	of 	negotiations. 	CSEA offers no persuasive 	legal
authority 	for 	this 	theory, 	and this 	element 	of 	the 	amended charge
shall 	be 	dismissed 	for the 	reasons 	set 	forth 	in my August 	19,
1997 letter.
Linkage 	of 	Tax Cut 	and Pay Raise
CSEA contends 	that 	the State, 	through the Governor himself, 	has
unlawfully 	linked 	the 	question 	of 	a 	negotiated pay 	raise 	to 	his
proposal 	for a general 	state 	income 	tax cut.
CSEA's 	reliance 	on Lake 	Elsinore 	is misplaced under the 	facts 	of
this case. 	In Lake Elsinore, 	the Board reaffirmed that 	insisting
to 	impasse 	on 	a 	nonmandatory 	subject 	of 	bargaining 	is 	a per 	se
unfair practice. 	As 	noted by CSEA in its 	factual 	assertions,
neither party has 	declared 	impasse 	in 	the 	ongoing 	successor
contract negotiations. 	Thus, 	the Lake Elsinore 	standard is not
applicable 	to the facts of 	this case. 	It bears noting, 	as well,
that 	the 	Board also 	recognized 	in Lake 	Elsinore 	the 	right 	of 	a
party to make 	proposals 	on nonmandatory subjects.
The 	more 	appropriate 	analysis 	here 	is 	that 	applied by the 	Board
in Fremont Unified School 	District 	(1980) 	PERB Decision No. 	136
(Fremont). 	The conduct 	found unlawful 	in Fremont 	involved the
employer's 	conditioning its proposals on a 	future 	event, 	namely
the passage 	of 	a 	tax measure 	in an upcoming election. 	The 	Board
held 	that 	by 	conditioning proposals 	on 	a matter 	outside 	the
control 	of 	the negotiators, 	the 	employer 	"frustrated the
negotiations 	process 	as 	surely as 	if 	it 	had refused to negotiate
outright. 	(Fremont.) 	The Governor's conduct 	in this 	case 	is
similar to that 	of 	the employer 	in Fremont.
The Fremont District's conduct, 	however, 	was not 	found to be a
per 	se unfair practice, 	but 	was 	instead analyzed under the
totality of 	circumstances 	standard described 	in my August 	19,
1997 	letter. 	Thus, 	even assuming Fremont's findings can be
applied,3 this 	allegation establishes 	only one 	indicia of
surface bargaining, 	and is 	insufficient 	on 	its 	own to warrant
issuance 	of 	a 	complaint. 	(Fresno County Office 	of 	Education
(1993) 	PERB Decision No. 	975.)
3The 	findings 	against 	the 	employer were vacated pursuant 	to
court 	order 	in Fremont Unified School 	District 	(1982) 	PERB
Decision No. 	136a.
(

Dismissal 	Letter
SA-CE-1007-S
September 16, 	1997
Page 4
Threat 	of 	Reprisal/Promise 	of 	Benefit
The 	statement 	of 	opinion attributed to 	a 	spokesperson 	for 	the
Governor 	falls 	short 	of 	conduct 	which would be 	held unlawful
under relevant precedent. 	In Rio Hondo, 	the Board reaffirmed the
principle 	that 	an employer 	is 	entitled to 	free 	speech rights 	on
employment 	related matters. 	The 	Board 	further observed that,
[w]hile 	the 	protection 	afforded 	the
employer's 	speech is not without 	limits, 	it
must 	necessarily 	include 	both 	favorable 	and
critical 	speech 	regarding 	a 	union's 	position
provided 	the 	communication 	is 	not 	used as 	a
means 	of 	violating 	the 	[collective bargaining
statute]. 	[Id.; 	citation omitted.]
Applying 	this 	standard 	in 	Colusa Unified 	School 	District 	(1983)
PERB Decision No. 	296, 	the Board dismissed an interference
allegation where 	the 	superintendent 	and a 	school 	board member
were publicly critical 	of 	the 	union 	for 	its 	advocacy of 	a holiday
pay issue.
Here, 	while 	the 	statement 	cited by CSEA is understandably
considered repugnant 	and/or inflammatory by CSEA, 	it 	does not,
under the 	objective 	test 	used by the Board, 	constitute 	either a
threat 	or promise. 	(See 	Chula Vista City School 	District 	(1990)
PERB Decision No. 	834, 	pp. 	10-14.) 	This allegation must be
dismissed.
Conclusion
Therefore, 	I 	am dismissing the 	charge 	in its 	entirety based on
the 	facts 	and reasons discussed above, 	as well 	as 	those contained
in my August 	19, 	1997 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:
Public 	Employment 	Relations 	Board
1031 	18th Street
Sacramento, 	CA 95814
( 	(

C
Dismissal 	Letter
SA-CE-1007-S
September 16, 	1997
Page 5
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
~1
Les Chisholm
Regional Director
Attachment
cc: 	Warren C. 	Stracener
_)	 	)

STATE OF CALIFORNIA 	( 	f 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
1031 18th Street, Room 102
Sacramento, CA 95814-4174
(916)322-3198
August 19, 	1997
Gary Reynolds, 	Chief Counsel
Claire Iandoli, 	Attorney
California 	State 	Employees 	Association
1108 "0" Street, 	Suite 327
Sacramento, 	CA 95814
Re: 	WARNING LETTER
California State Employees Association, 	Local 	1000, 	SEIU,
AFL-CIO. 	CLC v. 	State of 	California 	(Department 	of 	Personnel
Administration)
Unfair Practice 	Charge No. 	SA-CE-1007-S
Dear Mr. 	Reynolds and Ms. 	Iandoli:
The 	above-referenced unfair practice 	charge 	was 	filed with 	the
Public Employment 	Relations Board 	(PERB or Board) 	on July 	9,
1997. 	The charge alleges that 	the 	State of 	California 	(State)
breached 	the 	duty to meet 	and confer 	in good faith with 	the
California State 	Employees Association 	(CSEA or Union) 	imposed by
Government 	Code 	section 	3517,1 in violation of 	Government 	Code
section 3519, 	subsections 	(a), 	(b) 	and 	(c). 	The State's unlawful
conduct 	is 	summarized by you 	as 	follows:
[B]y 	conditioning 	the 	Union's 	economic
demands 	on acceptance 	of 	the 	State's non-
economic proposals, 	by lacking the 	authority
to 	reach 	an 	agreement 	and mischaracterizing
the 	bargaining 	and 	appropriation process 	and
by 	lacking 	the 	financial 	ability to 	endeavor
to 	reach agreement.
CSEA is 	the 	exclusive 	representative 	of 	State Bargaining Units 	1,
3, 	4, 	11, 	14, 	15, 	17, 	20 and 21. 	The memoranda of understanding
for all nine units expired on June 	30, 	1995, 	and the parties have
been engaged 	in 	successor contract 	negotiations 	since 	June 	1995.
The parties 	to 	date 	have 	neither reached agreement 	in 	any unit
nor declared 	impasse pursuant 	to Government 	Code 	section 	3518.
The 	instant 	charge 	relies 	entirely on excerpts 	of 	testimony
provided on April 	14, 	1997, 	by David Tirapelle, 	Director of the
1The Ralph C. 	Dills Act 	(Dills Act), 	originally known as the
State Employer-Employee Relations Act 	(SEERA), 	is codified at
Government 	Code 	section 3512 	et 	seq.
. 	.	. 	.
•

Warning Letter
SA-CE-1007-S
August 19, 	1997
Page 2
Department of Personnel Administration 	(DPA),2 to the State
Senate Public Employment and Retirement Committee.3 The
testimony quoted by CSEA,4 regarding the relationship between
the Union's 	salary demands and civil 	service reforms proposed by
the Governor, 	reads as follows:
Senator Schiff: 	"Has 	it been implied during
the discussions, 	that absent progress on
civil service legislation there will be no
money on the table?"
Mr. 	Tirapelle: 	"I don't think we've said
that there will be no money on the table
because we've never had the ability to put
money on the table. 	. 	. 	." 	[Footnote and
argument 	omitted.]
Senator Schiff: 	"So, 	what you're saying is
that 	in DPA's view the two are linked and you
won't resolve one without 	resolving the
other?"
Mr. Tirapelle: 	"I think that, that's
correct." 	[Footnote and argument omitted.]
Senator Schiff: 	"Do you think that the
linkage between the civil 	service reforms and
the pay raise issue is the reason why the pay
raise has not been included in the budget,
the reason why we cannot use the reserve that
we have now to provide the last few weeks of
the pay raise for this year?"
2DPA is 	the designated representative of the Governor for
purposes of 	collective bargaining.
3The charge notes the existence of another pending unfair
practice charge, 	filed on April 23, 	1997. 	In that charge,
identified as PERB Case No. 	SF-CE-161-S, 	CSEA disputes whether
the State has engaged in good faith negotiations with CSEA with
respect to Bargaining Units 1 and 17. 	As of this writing, 	PERB
has not issued a complaint with respect to that charge.
*DPA submitted a transcript of additional portions of the
testimony, 	and a copy was provided to you for your review as to
its accuracy.
·,
( 	(

Warning Letter
SA-CE-1007-S
August 19, 	1997
Page 3
Mr. 	Tirapelle: 	"I don't think there's any
linkage whatsoever to date on that because
there's been no money appropriated or
allocated for salary increases."
Senator Schiff: 	"What marching orders are
the DPA negotiators under during the
bargaining process?"
Mr. 	Tirapelle: 	"At this point in time, 	the
direction to the bargainers is we have no
money in order to put 	forth an economic
package."
Senator Schiff: 	"So, 	there really is no
collective bargaining going on over the pay
raise issue right now?"
Mr. 	Tirapelle: 	"No. 	I think that's a fair
conclusion."5
Discussion
The Dills Act 	imposes a duty on the State employer to negotiate
with the exclusive representatives of its employees, 	and the
State violates section 3519 (c) 	if it fails to meet and negotiate
in good faith.
The standard generally applied to determine whether good faith
negotiations have occurred is called the 	"totality of conduct"
test. 	This test reviews the entire course of conduct during
negotiations to determine whether the parties have negotiated in
good faith with the 	"requisite 	subjective 	intention of reaching
an agreement." 	(Pajaro Valley Unified School District 	(1978) 	PERB
Dec. No. 	51.) . 	There are also certain acts which have such a
potential 	to frustrate negotiations 	that they are held unlawful
without a determination of subjective good faith. 	For example,
the 	insistence to impasse on a nonmandatory subject 	of bargaining
constitutes a "per se" violation of the duty to bargain in good
5Tirapelle, 	in answering the question, 	continued by stating:
But I think its 	[sic] 	been made clear to us
from the employee organizations and
rightfully so that until there's some
economic package to debate that there will be 	-
no collective bargaining agreements.
(

Warning 	Letter
SA-CE-1007-S
August 19, 	1997
Page 4
faith. 	(Lake Elsinore School District 	(1986) 	PERB Decision No.
603.)
Conditional 	Bargaining
CSEA first 	argues 	that 	Tirapelle's 	testimony proves 	that 	the
State 	has 	unlawfully engaged 	in 	conditional 	bargaining. 	CSEA
contends 	that 	the
State 	has 	proposed 	that 	in exchange 	for 	the
Union's economic demands, 	CSEA must 	endorse
future 	legislation 	supporting 	the 	State's
non-economic demands 	(i.e., 	civil service
proposals).
CSEA relies 	on Fremont Unified School 	District 	(1980) 	PERB
Decision No. 	136 	(Fremont) 	as 	authority for its contention that
this 	linkage 	of 	economic proposals 	to 	civil 	service 	reform
legislation 	is 	indicative 	of 	bad 	faith.
As noted above, 	it 	is unlawful 	to insist 	to impasse 	on a
nonmandatory subject 	of bargaining. 	(Lake Elsinore 	School
---·District, 	supra.- ) 	Neither Fremont 	nor other relevant precedent,
- - -however, 	holds 	that 	either party is barred from 	"packaging"
proposals. 	The 	conduct 	found unlawful 	in Fremont6 involved the
employer's 	conditioning 	its proposals 	on a 	future 	event, 	namely
the passage 	of 	a 	tax measure 	in an upcoming election. 	The Board
held that 	conditioning proposals 	on a matter outside 	the 	control
of 	the negotiators 	equated with an outright 	refusal 	to bargain.
(Fremont.) 	The 	facts of the 	instant case are quite different, 	as
it 	is 	alleged that 	the State 	has 	"linked" 	economic proposals with
a proposal 	that 	the Union agree 	to 	support 	certain 	future
legislation. 	Unlike 	the 	situation 	in Fremont. 	where the union
had no control 	over the 	outcome 	of 	the 	tax measure, 	CSEA can
determine whether 	-- 	or not 	-- 	to agree to support 	legislation.
Relevant 	federal 	precedent 	also 	does 	not 	support 	the Union's
theory. 	Cases 	where 	conditional 	bargaining has 	been 	found to be
evidence 	of 	bad 	faith 	involve 	quite 	different 	facts 	than 	are
present here. 	For example, 	in NLRB v. 	Patent Trader. 	Inc. 	(2d
Cir. 	1969) 	415 F.2d 190 	F71 LRRM-30861; 	Federal Mogul Corp.
(1974) 	212 NLRB 950 	[87 LRRM 1105], 	enforcd 	(6th Cir. 	1975) 	524
F.2d 37 	[91 LRRM 2207]; 	and Adrian Daily Telegram 	(1974) 	214 NLRB
1103 	[88 LRRM 1310], 	the courts and National Labor Relations
6The 	findings 	against 	the 	employer were vacated pursuant 	to
court 	order 	in Fremont Unified School 	District 	(1982) 	PERB
Decision No. 	136a.
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Warning Letter
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Board found evidence of bad faith bargaining where an employer
refused to bargain or submit proposals concerning monetary issues
until 	complete agreement had been reached on non-economic
issues .7
In the instant charge, 	it is alleged that the State is linking or
"packaging" 	agreement on wages with agreement on a non-monetary
subject.8 This conduct does not rise to the level 	found to
evidence bad faith in the cases cited above, 	nor is this conduct
equivalent to demanding that the union waive any statutory right.
(Modesto City Schools 	(1983) 	PERB Decision No. 	291; 	Lake Elsinore
School District, 	supra.) 	This portion of the charge must
therefore be dismissed.
Lack of Authority
CSEA next cites Tirapelle's testimony as proof that DPA lacks
authority to enter into an agreement. 	The statements relied on
by CSEA 	("we've never had the 	ability to put money on the table"
and "the direction to the bargainers is we have no money in order
to put forth an economic package") 	do not, 	however, 	mean what
CSEA says they mean. 	There is a difference between lacking the
authority to reach an agreement, 	and lacking the authority to
offer a salary increase. 	The statements quoted by CSEA
demonstrate on their face that DPA did not have, 	at that time,
authority to offer a salary increase, 	but they fall short of
demonstrating that DPA lacked authority to enter into a tentative
agreement.
The facts of this case are thus distinguished from a situation
where an employer sends negotiators to the table who have no
authority to enter into a contract or advance binding contract
proposals. 	(See Cablevision Industries 	(1987) 	283 NLRB 22 	[126
LRRM 1102] 	(negotiator misled union to believe he had authority
to conclude agreement); S-B Mfg. Co. 	(1984) 	270 NLRB 485 	[116
LRRM 1334] 	(negotiators served as mere conduit for proposals and
lacked authority even to reach tentative agreement); 	Bedford
Farmers COOP. 	(1982) 	259 NLRB 1226 	[109 LRRM 1113 	(negotiator
lacked authority even to advance binding contract proposals); 	see
also Professional Eve Care 	(1988) 	289 NLRB 1376 	[131 LRRM 1185]
(negotiator uninformed as to present terms and conditions of
employment and lacked authority to propose changes); 	Penntech
7These and similar cases were cited by the Board in Fremont.
8Tirapelle also stated that while, 	in his view, 	the economic
and non-economic 	issues were 	linked by both DPA and the unions,
the State had not established a 	"quid pro quo" 	sort of linkage.
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Warning 	Letter
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Page 6
Papers 	(1982) 	263 	NLRB 264 	[111 LRRM 1622] 	(negotiator had very
little 	authority and adopted take-it-or-leave-it 	approach),
enforced, 	(1st Cir. 	1983) 	706 F.2d 18 	[113 LRRM 2219], 	cert,
denied, 	464 US 	892 	[114 LRRM 2648] 	(1983).)
Tirapelle 	also 	testified that 	DPA's 	discretion 	in 	current
negotiations 	is 	not 	more 	limited than 	in the past, 	and 	further
stated:
I 	think 	that we 	need an economic package 	in
order to move 	forward. 	And 	I 	think the
Governor, 	when he proposed the budget,
indicated that 	some 	funds 	in that 	$500
million plus 	reserve when 	it 	was 	identified
in January, 	would be used 	for 	collective
bargaining agreements. 	I 	think as we move
forward, 	as 	[the Legislature moves] 	forward
through 	the 	budget 	debate 	toward 	the 	passage
of a budget, 	it will become clear that
there's 	agreement 	between 	the 	legislature 	and
the executive branch, 	that 	there will be
money for collective bargaining, 	salary
increases, 	economic items, 	then we'll move
forward and put 	funds 	on 	the 	table.
The 	latter statement 	is 	not 	reflective 	of 	a 	take-it-or-leave-it
approach and does 	not 	support 	the proposed finding of 	a
violation. 	(Penntec-------·h Papers, 	supra.- 	- ) 	This allegation must also
be 	dismissed.
Putting 	the Appropriations 	Cart 	before 	the 	Bargaining Horse
Finally, 	CSEA cites 	Tirapelle's 	testimonial 	statements 	to the
effect 	that bargaining is not proceeding, 	and that 	DPA is
awaiting 	an economic 	package 	from 	the 	legislative 	appropriation
process, 	as evidence 	that 	the State 	is not bargaining 	in good
faith.
CSEA relies 	here 	on the 	language of 	Dills Act 	sections 	3517,
3517.5 	and 3517.6. 	CSEA calls particular attention to the
definition of "meet 	and confer 	in good 	faith" 	found 	in 	section
3517 which states 	that 	the parties will 	"endeavor to reach
agreement 	on matters 	within the 	scope 	of 	representation prior 	to
the 	adoption by the 	state 	of 	its 	final 	budget 	for 	the 	ensuing
year." 	(Emphasis 	added.) 	CSEA also notes 	that both section
3517.5 	and 3517.6 	address 	the 	requirement 	to 	seek 	legislative
approval 	of 	any agreement 	(3517.5) 	and conditions 	the 	effect 	of
"any provision 	of 	the 	memorandum of 	understanding 	[which]
,
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August 19, 	1997
Page 	7
requires 	the 	expenditure of 	funds" 	on approval 	"by the
Legislature 	in the annual Budget Act" 	(3517.6).
By acknowledging 	that 	the 	State 	cannot 	"endeavor 	to 	reach
agreement" 	without 	the Governor and Legislature providing 	funds
for economic 	items 	through the appropriations process, 	CSEA
argues 	that 	Tirapelle 	has 	admitted that 	the 	State 	is 	not 	meeting
and conferring 	in 	good 	faith.
CSEA's argument 	on this point 	is at 	odds with PERB precedent. 	In
State 	of 	California 	(Department 	of 	Personnel 	Administration)
(1990) 	PERB Decision No. 	823-S 	(ACSA III). 	the Board cited and
reaffirmed 	its 	earlier conclusions 	from State 	of 	California
(Department of 	Personnel Administration) 	(1986) 	PERB Decision No.
569-S 	(ACSA I ) . 	Observing that 	the 	charging party was attempting
to 	link the negotiation process 	to 	the 	timelines 	imposed 	for
adoption of 	a state budget, 	the Board noted in ACSA III 	that 	it
had
previously 	recognized 	that 	the 	state's
obligation 	to meet 	and confer 	in good 	faith
does 	not 	bind 	the 	collective 	bargaining
process 	to the budget. 	(State of 	California
(Department 	of 	Personnel 	Administration)
(1988) 	PERB Decision No. 	706-S.) 	Moreover,
section 	3517 merely establishes 	the budget 	as
a 	"point 	of 	reference" 	and not 	a 	statutory
deadline 	for negotiations. 	(ACSA I, 	p. 	7.)
The 	Board continued by quoting ACSA 	I 	as 	follows:
. 	. 	. 	the language of section 3517 imposing
an obligation 	"to endeavor" 	exhorts 	the
parties 	to attempt 	or to 	strive 	in earnest 	to
attain a certain end. 	Thus, 	the statutory
mandate 	is 	violated where 	either party's
conduct 	fails 	to demonstrate 	such effort.
However, 	the 	statutorily imposed obligation
"to 	endeavor" 	can by no means 	be 	interpreted
to 	create 	an absolute 	standard pursuant 	to
which a 	failure 	to present 	proposals 	by June
15 must be 	judged a per se violation.
In sum. 	SEERA's 	statutory provisions do not
specifically mandate 	that 	negotiations 	with
the 	employee 	organization must 	precede 	or
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Warning Letter
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Page 8
follow final legislative action. 	[ACSA III,
emphasis 	in original.]
The Board thus 	concluded that
it 	is not necessarily inappropriate for the
Governor's representative, 	as a part of his
bargaining strategy, 	to delay making a firm
proposal until he has had an opportunity to
review the final budget 	in good faith in
order to determine the funds potentially
available for salary increases. 	(ACSA III.)
Thus, 	the delay in making a firm salary proposal until after
adoption of the final budget was determined to be neither
evidence of a per se violation nor, 	by itself, 	an indicia of bad
faith bargaining under a totality standard. 	(Id.)
As CSEA's theory in the instant case is indistinguishable from
that considered in ACSA III, 	this allegation must also be
dismissed.
Conclusion
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 August 26. 	1997. 	I
shall dismiss your charge. 	If you have any questions, 	please
call me at 	(916) 	322-3198, ext. 359.
Les Chisholm
Regional Director
( 	(