State of California (Board of Equalization) (PERB 1258S)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA STATE 	EMPLOYEES
ASSOCIATION,
Charging 	Party,
v.
STATE 	OF 	CALIFORNIA 	(BOARD 	OF
EQUALIZATION),
Respondent.
Case No. 	SA-CE-822-S
PERB Decision No. 	1258-S
April 	3, 	1998
Appearances: 	Howard Schwartz, 	Attorney, 	for California State
Employees Association; 	State of 	California 	(Department 	of
Personnel Administration) 	by Michael P. 	Cayaban, 	Legal Counsel,
for State of California 	(Board of Equalization).
Before Caffrey, 	Chairman; 	Amador and Jackson, 	Members.
DECISION
AMADOR, 	Member: 	This 	case 	comes before the Public
Employment 	Relations 	Board 	(PERB 	or Board) 	on appeal 	by the 	State
of 	California 	(Board of Equalization) 	(State or BOE) 	of a PERB
administrative 	law judge's 	(ALJ) 	proposed decision. 	In the
proposed decision, 	the ALJ determined that 	BOE violated 	the Ralph
C. Dills Act 	(Dills Act) 	section 3519(a), 	(b) 	and 	(c),1 finding
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:
(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
}
)
}
}
}
}
}
}
~~=-=-=-=-=-----------!

that 	BOE 	unlawfully 	implemented 	a 	change 	in 	the 	automated
compliance management 	system 	(ACMS).2 After reviewing 	the 	entire
record, 	the 	Board 	reverses 	the 	proposed decision 	in part 	and
affirms 	it 	in part, 	for 	the 	reasons 	explained below.
BACKGROUND
The 	State 	is 	an 	employer and 	the 	California 	State 	Employees
Association 	(CSEA) 	is 	the 	exclusive 	representative 	of 	an
appropriate unit 	of 	employees, 	both within 	the meaning 	of 	the
Dills 	Act. 	Several 	thousand 	employees 	represented by 	CSEA work
at 	BOE. 	In 	early 	1996, 	BOE management 	established a 	Compliance
Strategies 	Team 	to 	develop 	a 	program 	for 	processing 	files 	by
computer. 	Two 	CSEA members 	participated 	on 	that 	team, 	which
ultimately 	developed 	the 	ACMS.
In 	January 	1996,3 CSEA Senior 	Labor 	Relations 	Representative
Rosemarie Duffy 	(Duffy) 	learned about 	the 	formation 	of 	the 	team.
On 	or 	about 	January 	31, 	BOE 	issued a memo 	to 	team members
describing 	a 	series 	of meetings 	to 	design and 	implement 	the ACMS.
The 	meetings 	were 	scheduled 	over 	a 	three-month 	period 	starting
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.
2The ACMS 	is 	a 	computer 	system to 	replace 	paper processing
of 	files.
3A11 	calendar dates 	hereafter 	refer 	to 	1996.
2

February 14.
On or about 	February 	13, 	Duffy had a phone 	conversation with
BOE 	labor relations, 	during which the BOE 	representative 	stated
that 	CSEA would be 	notified 	officially 	30 	days 	before
implementation of 	the ACMS. 	On or about 	February 20, 	Duffy wrote
to BOE 	Labor Relations Officer Robert Gorham 	(Gorham) 	regarding
the 	team, 	expressing her belief 	that 	the 	team would 	circumvent
the union by dealing directly with unit 	members 	on 	items 	within
the 	scope 	of 	representation. 	She also 	requested 	further
information and minutes 	of 	the 	February 14 meeting, 	to which BOE
responded on 	or about March 26.
On or about March 28, 	Duffy wrote Gorham, 	officially
requesting 	to meet 	"over the ACMS 	efforts, 	including potential
impact 	on Unit 	1 	and Unit 	4 	employees 	at 	the Board such as
displacement, 	training needs, 	and changes 	in work procedures."
On or about March 29, 	Gorham telephoned Duffy, 	expressed his
willingness 	to meet, 	and the parties 	set a meeting date of
April 15.
The 	same day, 	CSEA filed 	its 	original 	unfair practice 	charge
alleging 	that, 	among other things,4 BOE's assignment 	of unit
members 	to 	the 	team was 	an attempt 	to bypass 	the authority of
CSEA in violation of 	the Dills Act. 	Gorham phoned CSEA on or
about April 	2 	and 	stated 	that 	"based 	on 	receiving 	the unfair
practice 	charge, 	I now have 	to bump this up to DPA and you need
4Charge 	allegations 	which were 	dismissed by 	PERB's 	General
Counsel 	are not before 	the Board 	in this 	appeal.
33

to go 	to DPA to 	request 	a meeting." 	The April 	15 meeting was
cancelled.
Duffy asked Gorham whether BOE was 	refusing 	to meet, 	and he
testified 	that 	he 	answered as 	follows:
I 	clarified, 	no, 	I'm not 	refusing to
meet with you, 	it's 	that 	I don't have
the 	authority 	to meet 	with you any
longer. 	[Emphasis added.]
Duffy 	followed 	this 	phone 	call 	with a 	letter 	to Gorham,
accusing BOE 	of 	refusing 	to meet. 	Gorham responded by letter,
reiterating that 	BOE had never refused to meet, 	and explained
that 	CSEA's 	filing 	stripped him of 	legal 	authority 	to meet 	with
CSEA. 	He 	closed by saying 	that 	if Duffy had any questions, 	she
should phone him. 	She did not 	do 	so.
On or about April 	5, 	Department 	of 	Personnel Administration
(DPA) 	counsel wrote to Duffy, 	informing her that DPA was
representing BOE 	in 	connection with 	the unfair practice 	charge,
and 	requesting 	that 	all 	future 	correspondence 	and documents 	be
directed 	to DPA. 	CSEA did not 	respond.
On or about June 	14, 	BOE 	sent 	CSEA official 	notice 	that 	the
ACMS would be 	implemented on July 29. 	Once again, 	CSEA did not
respond.
On or about July 15, 	however, 	CSEA filed an amended unfair
practice 	charge, 	adding an allegation that:
Since April, 	1996 	CSEA has 	continued to
request 	to meet 	and 	confer with 	the BOE
concerning 	its 	intent 	to 	implement 	the ACMS
and its 	impact 	on BOE employees. 	Despite
these requests, 	BOE has and continues 	to
refuse 	to meet 	and 	confer with CSEA on this
subject.
44

On or about July 24, 	DPA made a 	settlement 	offer 	to CSEA,
which expressly 	stated 	that 	the purpose 	of 	the 	offer was 	to
resolve 	the unfair practice dispute, 	and 	"shall 	not 	in any manner
be deemed a waiver of any of 	the State's 	defenses." 	DPA also
conveyed BOE's 	offer 	to meet 	and 	confer with CSEA about 	impact 	on
or before 	implementation, 	provided that 	CSEA's unfair 	labor
practice 	charge be withdrawn without 	prejudice. 	On or about
July 26, 	CSEA rejected the offer.
On or about September 19, 	1996, 	PERB's General Counsel
issued a 	complaint 	against 	BOE. 	The 	complaint 	alleged 	that 	prior
to July 29, 	employees 	represented by CSEA were assigned and
processed cases manually. 	On that date, 	it was alleged that BOE
changed 	the 	policy by activating 	the ACMS 	in violation 	of 	the
Dills Act. 	This 	action was 	allegedly done without 	affording CSEA
an 	opportunity 	to meet 	and 	confer 	over 	the 	effects 	of 	the 	change
in policy, 	and was 	thereby a 	failure 	of 	BOE's duty to meet and
confer in good faith in violation of 	section 3519(c), 	denied CSEA
its 	rights 	to 	represent 	its members 	in violation of 	section
3519(b), 	and interfered with employee 	rights 	to be 	represented in
violation of section 3519(a).
The 	complaint 	alleged a 	separate bypassing 	cause 	of 	action
relating 	to BOE's 	assignment 	of 	CSEA members 	as part 	of 	the
Compliance 	Strategies 	Team.
On or about 	October 3, 	BOE 	filed its answer, 	denying any
violation of 	the Dills Act and raising various 	defenses. 	After a
hearing, 	the ALJ 	issued a proposed decision 	in which he 	dismisses
5
5

the 	bypassing 	allegation.
With regard to 	the unilateral 	change 	allegation, 	the main
issue 	the ALJ 	faced was 	whether BOE 	afforded 	CSEA an 	opportunity
to meet 	and confer over 	impacts 	of 	the ACMS. 	He 	found that 	CSEA
requested to meet and confer on March 28 	and on June 	14. 	After
describing 	the 	late 	July 	settlement-related 	communications 	in
detail,5 he 	concluded that 	the 	State violated the Dills Act
because 	it placed an unlawful 	condition on 	its 	offer to meet.
EXCEPTIONS 	AND 	RESPONSE
BOE 	challenges 	the ALJ's 	admission of 	the 	settlement-related
evidence 	and asserts 	that 	CSEA was 	afforded 	the 	opportunity 	to
bargain 	over the 	effects 	of 	the ACMS.6 CSEA responds by accusing
BOE of making 	"illusive and conditional 	offers 	to meet, 	all 	of
which 	were 	ultimately 	retracted."
DISCUSSION
Bypassing 	Allegation
In planning 	to 	convert 	from manual 	to automated processing
of 	certain files 	in early 1996, 	BOE established a compliance
strategies 	team to develop the ACMS. 	Two members 	of 	the
bargaining unit 	represented by 	CSEA were 	included 	on 	that 	team.
5During 	the hearing, 	the ALJ admitted 	into 	the 	record
several 	items 	of 	settlement-related evidence 	over 	the 	State's
vigorous 	and 	repeated objections. 	The ALJ 	stated 	that 	he was
admitting 	the 	evidence 	to 	show a course 	of 	conduct 	only, 	not 	to
show liability. 	We 	discuss 	the 	impact 	of 	this 	ruling 	in more
detail below.
6BOE makes 	numerous 	other exceptions, 	including an objection
to the remedy. 	However, 	it 	is unnecessary to discuss 	them
because 	this 	case 	turns 	on the 	issues 	described here.
66

On March 29, 	1996, 	CSEA filed an unfair practice 	charge alleging
that 	this 	constituted unlawful bypassing by BOE. 	In his proposed
decision, 	the ALJ dismissed the bypassing allegation.
No exceptions address 	the dismissal 	of 	this allegation, 	and
we affirm its dismissal 	for the 	following reasons. 	In order to
sustain an allegation of unlawful 	bypassing, 	the 	charging party
must 	demonstrate 	that 	the 	employer worked directly with
bargaining unit members, 	and not 	the exclusive representative, 	to
create 	a 	new policy 	or modify an 	existing policy affecting
negotiable 	subjects 	of 	general 	application 	to bargaining unit
members. 	(Walnut Valley Unified School District 	(1981) 	PERB
Decision No. 	160 	(Walnut Valley).)
Here, 	CSEA did not present 	direct 	evidence of 	the work
conducted by the 	team. 	Although 	it 	appears 	that 	the 	team
discussed 	ideas 	and processes, 	CSEA has 	failed to meet 	its burden
under Walnut Valley of 	demonstrating 	that 	the 	State unlawfully
bypassed CSEA. 	Accordingly, 	we affirm the ALJ's 	dismissal 	of
this 	allegation.
Unilateral 	Change Allegation7
In this 	case, 	the parties differ over the legal 	significance
of 	a 	series 	of 	communications between them. 	The 	employer 	claims
70n September 19, 	1996, 	a Board agent 	correctly dismissed
the allegation 	that 	the 	State was 	required 	to negotiate 	over 	its
decision to 	implement 	the ACMS. 	The Board agent 	noted that 	the
determination of what work 	is 	to be done 	is 	a non-negotiable
matter of management prerogative. 	(Davis 	Joint Unified School
District 	(1984) 	PERB Decision No. 	393.) 	As a result, 	the PERB
complaint 	in this 	case 	involves 	only the State's 	failure 	to meet
and confer over the negotiable 	effects 	of 	the ACMS.
77

it offered to negotiate 	in good faith, 	however, 	the exclusive
representative 	claims 	that 	the 	employer 	retracted 	that 	offer,
made conditional 	offers, 	or otherwise refused to bargain. 	In
analyzing the merit 	of 	these 	claims, 	we do not 	look for panacean
words 	to determine which side prevails. 	However, 	as Board
members, 	we 	cross 	the 	line 	from neutrality 	into advocacy 	if we
permit 	the 	charging party to prevail 	without proving all 	elements
of its case.
It 	is well 	settled that 	an employer who makes 	a unilateral
change 	in a 	term or 	condition of 	employment 	within 	the 	scope 	of
representation 	commits 	a per 	se 	refusal 	to meet 	and 	confer 	in
good 	faith. 	(Pajaro Valley Unified School 	District 	(1978) 	PERB
Decision No. 	51 at p. 	5; 	San Mateo County Community College
District 	(1979) 	PERB Decision No. 	94 at p. 	12.) 	In order to
prevail, 	the 	charging party must demonstrate all 	of 	the
following: 	(1) 	the employer breached or altered the parties'
written agreement 	or established past practice; 	(2) 	such action
was 	taken without 	giving 	the 	exclusive 	representative notice 	or
an opportunity to bargain over the change; 	(3) 	the change 	is not
an 	isolated breach of 	contract 	but 	amounts 	to a 	change 	in policy;
and 	(4) 	the 	change 	in policy concerns 	a matter within the 	scope
of 	representation. 	(Grant 	Joint Union High School 	District
(1982) 	PERB Decision No. 	196; 	Davis Unified School District, 	et
al. 	(1980) 	PERB Decision No. 	116.)
We 	find 	that 	CSEA has 	not met 	its 	burden of 	proving 	the
second element 	of 	its prima 	facie 	case by a preponderance 	of 	the
8

evidence. 	Specifically, 	CSEA has not 	shown that BOE 	failed to
afford CSEA the 	opportunity 	to negotiate 	the 	effects 	of 	BOE's
decision to 	implement 	the ACMS. 	Our reasons 	follow.
Admissibility 	of 	Settlement 	Evidence
As 	a preliminary matter, 	we address 	the admissibility of
evidence 	related to settlement. 	During 	the hearing, 	BOE made
numerous 	specific and timely objections 	to CSEA's 	attempts 	to
enter that 	evidence 	into the 	record. 	These 	objections were based
on the grounds 	that 	Evidence 	Code 	section 	1152 	and PERB
Regulation 321768 preclude admission of 	settlement 	discussions.
Evidence Code section 1152 provides 	in part 	that:
(a) 	Evidence that a person has, 	in
compromise 	or 	from humanitarian motives,
furnished 	or offered 	or promised 	to 	furnish
money or any other thing, 	act, 	or service to
another who has 	sustained or will 	sustain or
claims 	that 	he 	or she has 	sustained or will
sustain loss or damage, 	as well as any
conduct 	or 	statements made 	in negotiation
thereof, 	is 	inadmissible to prove his 	or her
----liability--------------for 	the 	loss 	or damage 	or any part
- 	-of 	it. 	[Emphasis added.]
This 	rule 	reflects 	an 	important public policy 	in 	favor of
settling disputes without 	litigation. 	(See Brown v. 	Pacific
Electric Ry. Co. 	(1947) 	79 Cal.App.2d 613 	[180 P.2d 424]; 	see
also, 	Fieldson Associates. 	Inc. v. Whitecliff Laboratories. 	Inc.
(1969) 	276 Cal.App.2d 770 	[81 Cal.Rptr. 	332] 	[purpose of section
is 	to 	avoid deterring parties 	from making 	offers 	of 	settlement
and 	to 	facilitate 	candid discussion which may 	lead 	to
8PERB 	regulations 	are 	codified at 	California Code 	of
Regulations, 	title 8, 	section 31001 et seq.
99

settlement].)9
When considering BOE's 	objections, 	the ALJ stated that 	he
was admitting the evidence only for a limited purpose 	- - 	to
permit 	CSEA to 	show that 	"there was 	dialogue" 	between the parties
in July prior to implementation of 	the ACMS. 	(R.T. 	Vol. 	I,
p. 	39.) 	The ALJ clearly was aware of 	the significance 	of
Evidence Code 	section 1152, 	since 	in the 	course of 	officially
admitting 	the 	settlement 	offer 	into evidence, 	he 	stated that 	"no
finding of 	a violation of 	the Dills Act will be made by reading
of 	the 	letter itself."
However, 	we are not 	convinced that 	the ALJ confined his
consideration 	of 	the 	disputed evidence 	to 	the 	limited purpose he
stated. 	In the proposed decision, 	the ALJ began by discussing
the 	settlement 	offer 	for 	the 	limited, 	proper purpose 	- - a s
evidence 	that 	"DPA knew of 	CSEA's 	continued 	interest 	to meet 	and
confer, 	as 	it wrote to CSEA on July 24." 	However, 	he went on to
9The State also relies on PERB Regulation 32176, 	which
provides 	in part 	that:
Evidence 	of any discussion of 	the 	case 	that
occurs 	in an 	informal 	settlement 	conference
shall 	be 	inadmissible 	in accordance with
Evidence Code Section 1152.
We 	note 	that 	this 	regulation refers 	to 	PERB-sponsored
informal 	settlement negotiations, 	which is a different 	context
from the 	settlement 	offer DPA made. 	However, 	the 	same public
policy goal 	inherent 	in Evidence 	Code 	section 	1152 	underlies 	this
regulation. 	(See, 	e.g., 	Willits Unified School District 	(1991)
PERB Decision No. 	912, 	proposed decision at p. 	17, 	citing Modesto
City Schools and School District 	(1981) 	PERB Order No. 	Ad-117
[exposure 	of 	the 	content 	of 	settlement 	negotiations 	to 	the 	light
of 	a public hearing might 	well 	discourage 	the parties 	from
sincerely 	engaging 	in 	such 	discussions].)
10

use the 	evidence 	to 	find liability, 	which is 	improper. 	Focusing
on 	the 	existence and content 	of 	the 	settlement 	offer as proof, 	he
held 	that 	the 	State violated 	the Dills Act by unlawfully pressing
conditions 	to 	impasse.10 This 	is a separate use of 	the evidence
from the 	stated, 	limited purpose he articulated, 	a use 	that 	is
directly 	linked 	to 	the 	rationale 	for 	finding a violation.
Although 	it 	is 	sometimes 	appropriate 	to admit 	evidence 	of a
settlement 	offer for a limited purpose, 	it appears 	that 	the ALJ
had difficulty here 	in keeping 	the 	evidence 	from being used
improperly, 	thereby crossing the 	fine 	line of 	limiting purpose.
That 	fact, 	coupled with the public policy considerations
discussed above, 	lead us 	to 	conclude 	that 	the 	settlement-related
evidence 	should not 	have been admitted.11
Merits 	of Unilateral 	Chancre 	Issue
If 	one ignores 	the inadmissible evidence, 	the 	following
facts 	remain 	for 	consideration:
1. 	CSEA requested to meet and confer on March 28.12
2. 	BOE agreed unequivocally on March 29, 	and the parties
10Citing Lake 	Elsinore School 	District 	(1986) 	PERB Decision
No. 	603, 	he noted that an employer cannot 	insist 	to 	impasse the
withdrawal 	of unfair practice 	charges. 	Since DPA did not 	go
through 	the 	statutory mediation process 	prior 	to 	implementing 	the
ACMS, 	he found a violation.
u We wish 	to 	emphasize 	that 	nothing 	in this 	opinion 	should be
construed as 	removing 	the 	option 	for parties 	to offer, 	and ALJs
to consider, 	evidence of 	settlement 	offers 	for purposes 	that do
not 	conflict with the 	Evidence 	Code.
12We note 	that 	CSEA's 	charge alleges 	that 	it 	requested to
negotiate 	"since April." 	Since no 	one disputes 	that 	the March 28
request 	operated as 	a valid demand 	to bargain, 	we do not place
undue 	emphasis 	on 	the 	apparent 	three-day discrepancy.
11

set a date 	to meet 	(April 	15).13
3. 	CSEA filed the 	instant unfair practice 	charge 	the 	same
day.
4. 	During an early April 	telephone 	call 	between the
parties, 	the April 	15 meeting was cancelled, 	and Gorham
referred Duffy 	to 	BOE's 	legal 	representative 	should
CSEA wish 	to 	request 	a meeting. 	Duffy asked Gorham
whether BOE was 	refusing 	to meet. 	Gorham responded 	in
the 	negative 	and 	explained his 	reason 	for 	referring
CSEA to BOE's 	legal 	representative.
5. 	Duffy followed with a letter, 	accusing BOE of 	refusing
to meet.
6. 	Gorham responded by letter, 	reiterating 	that 	BOE had
never refused to meet. 	He 	invited Duffy to 	call 	back
if 	there were any questions. 	She did not do so.
7. 	A few days 	later, 	BOE's attorney wrote 	to Duffy,
mentioned 	that 	she was 	representing BOE 	in 	connection
with the unfair practice 	charge, 	and requested 	that all
future 	correspondence 	and documents 	be 	directed 	to her.
CSEA did not 	respond.
8. 	BOE gave 	CSEA formal 	notice 	of 	implementation of 	the
ACMS 	on June 	14, 	and stated that 	implementation would
occur 	in late July.
9. 	On July 	15, 	CSEA filed an amended unfair practice
charge.
Using 	these 	facts and the 	legal principles 	set 	forth above,
we analyze 	the 	case as 	follows. 	There 	is no dispute 	that 	CSEA
expressed a 	clear demand 	to bargain on March 28. 	As 	stated
above, 	we 	find that 	BOE's March 29 	response 	constituted an
unconditional 	offer 	to meet. 	CSEA now apparently argues 	that
when BOE 	referred CSEA to 	its 	attorneys 	to 	schedule 	a new
13One 	of 	BOE's 	exceptions 	challenges 	the ALJ's 	finding 	that
"BOE 	never unconditionally 	offered 	to meet 	and 	confer 	regarding
the 	implementation of 	the ACMS." 	BOE is 	correct. 	The record
lacks 	any evidence 	that 	BOE's March 29 	agreement 	to meet 	on
April 15 was, 	or became, 	conditional.
12

meeting, 	that 	referral 	operated as a retraction of BOE's March 29
offer to meet.
In weighing the merit 	of 	this argument, 	we 	consider the
significance 	of 	the 	entire 	sequence 	of 	events 	and 	communications
during the March-April 	time period. 	First, 	it 	is 	important 	to
note 	that 	nothing which 	occurred during 	that 	time 	altered 	the
parties' 	respective 	legal 	obligations. 	Having expressed a
willingness 	to meet, 	BOE 	remained obligated to provide 	CSEA with
an opportunity 	to bargain, 	and CSEA remained obligated 	to 	take
advantage 	of 	that 	opportunity or accept 	the 	consequences 	if 	it
chose not 	to do so. 	Simply put, 	we must decide whether BOE
"closed the door" 	or, 	by contrast, 	whether CSEA failed to walk
through 	the 	open door.
Focusing 	first 	on BOE's post-March 29 	conduct, 	there 	is 	no
doubt 	that 	BOE had the 	legal 	right 	to 	refer CSEA to 	its 	legal
representative upon learning of 	the unfair practice 	charge. 	That
action was 	reasonable 	and appropriate under 	the 	circumstances,
and we 	conclude 	that 	it was 	not 	the 	equivalent 	of 	retracting an
offer to negotiate. 	This 	is 	especially true 	in light 	of 	the 	fact
that, 	upon being questioned, 	BOE expressly denied CSEA's
accusation that BOE was 	refusing to meet. 	The door was 	still
open to 	CSEA at 	this point.
CSEA, 	on the other hand, 	made accusations and generated
documents 	in early April, 	but 	for some unexplainable reason did
not 	arrange 	a meet 	and confer 	session with 	the 	State. 	Neither
the Dills Act 	nor 	PERB precedent places 	an additional
13

responsibility on the State 	to 	seek out, 	cajole 	or encourage 	CSEA
to meet and confer. 	The State stood ready, 	willing and able 	to
negotiate. 	The 	onus 	was 	on CSEA to 	follow up after the 	State
acknowledged 	its 	obligation to negotiate. 	This 	acknowledgment
and duty 	to 	negotiate 	should not 	be 	construed 	as 	requiring 	the
State 	to actively initiate meeting arrangements. 	Furthermore, 	we
know of 	no 	case 	holding 	that 	an employer who manifests 	a
continued willingness 	to 	negotiate must 	aggressively pursue
scheduling 	negotiations 	or periodically broadcast 	signals 	that
the door remains 	open.14
In conclusion, 	to find a violation on these 	facts 	is
contrary 	to 	PERB precedent. 	After 	excluding 	the 	inadmissible
settlement 	evidence, 	the 	facts 	clearly demonstrate 	that 	CSEA
failed to meet 	its 	burden of 	showing that BOE 	refused to bargain.
CSEA has 	not proven its 	case, 	and dismissal 	of 	this allegation is
appropriate.
ORDER
The unfair practice 	charge 	and 	complaint 	in 	Case
No. 	SA-CE-822-S 	are hereby DISMISSED WITHOUT LEAVE TO AMEND.
Member Jackson 	joined 	in 	this 	Decision.
Chairman Caffrey's 	concurrence 	and dissent begin on page 	15.
14We 	also note 	that 	CSEA ignored a 	second 	clear opportunity
to 	request 	bargaining 	after 	it 	received 	the 	promised 	30-day
notice on June 	14. 	By its 	inaction, 	it 	failed a 	second time 	to
step 	through an 	open door.
14

CAFFREY, 	Chairman, 	concurring and dissenting: 	I concur in
the 	finding 	that 	the 	State 	of 	California 	(Board 	of 	Equalization)
(State or BOE) 	did not violate section 3519(a), 	(b) 	and 	(c) 	of
the Ralph C. 	Dills Act 	(Dills Act) 	by bypassing and undermining
the authority of 	the 	California State 	Employees Association
(CSEA). 	However, 	I conclude that the State violated
section 3519(b) 	and 	(c) 	of 	the Dills Act by failing to meet and
confer with CSEA over 	the 	negotiable 	effects 	of 	the 	automated
compliance management system 	(ACMS). 	Therefore, 	I dissent from
the dismissal 	of 	that allegation.
DISCUSSION
Bypassing 	Allegation
BOE 	established a compliance 	strategies 	team 	(CST) 	in early
1996 	to assist 	in the planning process 	for 	the 	conversion to 	the
ACMS. 	Included by BOE on the 	CST were 	two members 	of 	the
bargaining unit 	represented by CSEA. 	CSEA indicated 	to BOE 	that
it 	believed 	the 	CST was 	dealing with negotiable 	subjects 	and,
therefore, 	that working directly with bargaining unit members 	as
part 	of 	the 	CST 	constituted unlawful 	bypassing and 	circumvention
of 	CSEA. 	BOE 	responded that 	the 	CST was 	dealing with technical
issues 	relating 	to the 	conversion to automation, 	which did not
involve 	items within the 	scope 	of 	representation. 	On March 29,
1996, 	CSEA filed an unfair practice 	charge with the 	Public
Employment 	Relations 	Board 	(PERB or Board) 	alleging unlawful
bypassing by BOE.
15

To 	sustain 	this 	allegation, 	CSEA must 	demonstrate 	that 	BOE
worked directly with bargaining unit 	members 	to 	create 	a 	new
policy 	or modify 	an 	existing policy 	affecting 	negotiable 	subjects
of 	general 	application to employees. 	(Walnut Valley Unified
School District 	(1981) 	PERB Decision No. 	160 	(Walnut Valley).)
However, 	CSEA has 	failed to present 	direct 	evidence 	of 	the work
conducted by the 	CST. 	The 	State has 	indicated that 	the 	CST
discussed 	ideas 	and processes 	but 	did not 	become 	involved 	in
issues 	involving terms and conditions 	of 	employment. 	Further,
the 	CST did not 	have authority 	to make 	any 	final 	decisions
involving the ACMS 	and/or its 	implementation. 	Therefore, 	CSEA
has 	failed 	to meet 	its burden under Walnut Valley, 	and I 	concur
in the dismissal 	of 	the unlawful 	bypassing allegation.1
Failure 	to Bargain Over Negotiable 	Effects Allegation
On March 28, 	1996, 	CSEA made a clear demand of BOE to meet
and 	confer 	over 	the 	negotiable 	effects 	of 	the ACMS 	on bargaining
unit members. 	On March 29, 	1996, 	the parties scheduled an
April 	15, 	1996, 	meeting for that purpose. 	Also, 	on March 29,
CSEA filed an unfair practice 	charge at 	PERB 	consisting 	of 	the
unlawful 	bypassing 	allegation discussed above. 	BOE 	cancelled 	the
April 	15 	meet 	and 	confer 	session 	indicating 	that 	the Department
of 	Personnel Administration 	(DPA) 	had sole 	legal 	authority to
1I note 	that 	the 	PERB administrative 	law judge 	(ALJ) 	reached
this 	same 	conclusion and dismissed 	the 	bypassing 	allegation.
CSEA filed no 	exceptions 	to 	the ALJ's 	proposed decision.
16

meet 	with 	CSEA once 	the unfair practice 	charge 	had been 	filed.2
BOE Labor Relations Officer, 	Robert Gorham 	(Gorham), 	testified
that 	after 	cancelling 	the April 	15 	meeting he 	advised CSEA to
contact 	DPA to 	request 	another bargaining 	session. 	CSEA wrote 	to
BOE on April 	2, 	1996, 	asking 	if BOE was 	refusing to meet and
confer with CSEA. 	BOE responded on April 	2 	that 	it was 	not
refusing 	to meet and confer, 	but 	that 	"BOE 	is prohibited from
discussing 	this matter with CSEA" 	because 	of 	the unfair practice
charge. 	Gorham testified 	that 	he 	informed DPA of 	CSEA's 	request
to meet 	and confer.
Neither CSEA or 	the 	State made 	any apparent 	effort 	to
schedule another bargaining session. 	On June 14, 	1996, 	BOE
advised 	CSEA that 	the ACMS 	would be 	implemented 	effective
July 29, 	1996. 	CSEA filed an amended unfair practice 	charge 	on
July 15, 	1996, 	alleging 	that BOE had failed to meet and confer
with CSEA over 	"its 	intent 	to 	implement 	the ACMS 	and 	its 	impact
on BOE employees. "3
2The 	source of 	this 	"sole 	legal 	authority" 	assertion is
unclear. 	It appears 	that BOE's assertion reflects 	the State's
policy 	concerning 	representation 	of 	the 	State 	employer 	in various
aspects 	of 	employer-employee 	relations. 	While the State has 	the
discretion 	to designate 	its 	representative 	in dealing with CSEA,
and to change 	that 	representative, 	the exercise of 	that
discretion 	in no way 	changes 	or diminishes 	CSEA's 	Dills Act 	right
to bargain, 	or the State's Dills Act 	obligation to provide CSEA
with 	the 	reasonable 	opportunity to do 	so.
3It 	is well 	settled that 	the determination of what work 	is
to be 	done 	is a non-negotiable matter of management prerogative.
(Davis Joint Unified School District 	(1984) 	PERB Decision
No. 	393.) 	Consequently, 	a Board agent on September 19, 	1996,
dismissed 	CSEA's 	allegation 	that 	the 	State 	unlawfully 	failed 	to
negotiate over 	its 	decision to 	implement 	the ACMS. 	As a result,
the 	PERB 	complaint 	in this 	case 	involves 	the State's 	failure 	to
17

An 	employer's 	unilateral 	change 	in a matter within 	the 	scope
of 	representation is 	a per se violation of 	the duty to bargain 	in
good 	faith. 	(San Francisco 	Community College District 	(1979)
PERB Decision No. 	105.) 	However, 	if the employer provides the
exclusive 	representative 	with 	reasonable 	notice 	and 	the
opportunity to bargain, 	but 	the exclusive 	representative does not
respond 	to 	the 	opportunity, 	the 	employer may act unilaterally.
(Stationary Engineers v. 	San Juan Suburban Water Dist. 	(1979)
90 	Cal.App.3d 796, 	805 	[153 	Cal.Rptr. 	666].) 	Reviewing the facts
of 	this 	case, 	the majority finds 	that 	the State 	"opened the door"
to negotiations 	to CSEA, 	but 	that 	CSEA failed to walk through it.
Therefore, 	the majority concludes 	that 	the 	State did not 	refuse
to 	negotiate 	and 	that 	CSEA 	failed 	to 	respond 	to 	the 	opportunity
to bargain and 	its 	charge must 	be 	dismissed.
The 	legal 	theory at work here, 	while not 	specifically
referenced by the majority, 	is 	that 	of waiver by inaction. 	The
majority 	concludes 	that 	CSEA's 	failure 	to more actively pursue
bargaining over 	the 	impact 	of 	the ACMS 	constitutes 	a waiver of
its 	right 	to meet and confer on that 	subject. 	I disagree.
It 	is 	the 	fundamental purpose 	of 	the Dills Act 	to provide
for collective bargaining of 	the parties 	as 	a means 	of 	resolving
disputes 	concerning 	terms 	and 	conditions 	of 	employment 	(Dills Act
section 3512). 	As a result, 	in cases 	in which a waiver by
inaction 	is 	asserted, 	the Board has 	consistently held that 	a
waiver will 	not 	be 	found 	absent 	clear and unmistakable 	evidence
meet 	and 	confer over the negotiable 	effects 	of 	the ACMS.
18

or 	demonstrative 	behavior by 	the 	exclusive 	representative
indicating a 	failure 	to act 	in 	response 	to a 	reasonable
bargaining 	opportunity. 	(Amador Valley Joint 	Union High School
District 	(1978) 	PERB Decision No. 	74; 	Sutter Union High School
District 	(1981) 	PERB Decision No. 	175.) 	In Compton Community
College District 	(1989) 	PERB Decision No. 	720, 	the Board
considered 	circumstances 	in which 	the 	exclusive 	representative
had been uncooperative and engaged 	in dilatory 	conduct, 	yet
concluded 	that 	the 	conduct 	did not 	constitute 	a waiver by
inaction and did not 	relieve 	the 	employer 	of 	the 	duty 	to bargain.
In Compton Community College District 	(1990) 	PERB Decision No.
798, 	the 	employer argued that 	the exclusive 	representative
"failed to timely, 	adequately, 	and in good faith, 	respond to
notices 	from management" 	regarding a proposed policy 	change. 	The
Board noted 	that 	the 	exclusive 	representative 	had 	failed 	to
respond to management 	communications 	concerning 	the policy, 	but
had also 	clearly demanded to bargain. 	The Board rejected the
waiver by 	inaction assertion and 	concluded 	that 	the 	employer
violated 	its 	duty 	to bargain.
In my view, 	the 	instant 	case presents 	similar circumstances.
CSEA's 	demand to negotiate was 	clear. 	The 	State 	cancelled 	the
scheduled bargaining 	session 	and 	designated DPA 	rather 	than 	BOE
as 	its 	representative 	to meet 	and confer with CSEA. 	It 	is
undisputed that 	the State, 	both BOE and DPA, 	was 	aware of 	CSEA's
continuing demand to negotiate. 	Nonetheless, 	months went by with
neither party actively pursuing a 	rescheduling 	of 	the April 	15
19

bargaining session. 	It 	is 	clear that neither CSEA or the State
made 	a 	conscientious 	effort 	during 	this 	period 	to 	engage 	in 	the
bargaining 	over 	the 	negotiable 	effects 	of 	the ACMS 	which both
parties 	acknowledged should occur. 	Similar 	to 	the Board's
appraisal 	of 	the 	dilatory 	conduct 	in Compton Community College
District, 	supra. 	PERB Decision No. 	720, 	the conduct of the
parties 	here 	"should not 	be 	applauded, 	nor emulated by other
parties."
But 	exemplary 	conduct 	by 	the parties 	is 	not 	typically 	the
stuff 	of 	which PERB 	cases are made. 	The question 	for the Board
here 	is 	whether CSEA's 	failure 	to actively and 	conscientiously
pursue 	its valid demand 	to bargain 	over 	the 	negotiable 	effects 	of
the ACMS, 	following the State's 	cancellation of 	the April 	15
bargaining 	session, 	constituted a waiver by 	inaction which
relieved 	the 	State 	of 	its 	obligation to negotiate. 	Both the
fundamental 	purpose 	of 	the Dills Act 	to provide 	for negotiations
and the precedent 	cited, 	lead me 	to 	conclude 	that 	it 	did not.
The 	State's 	policy 	concerning 	designation 	of 	its 	representative
to negotiate with CSEA led to 	the 	cancellation of 	the April 	15
bargaining session. 	The 	State 	remained aware 	of 	CSEA's valid
demand to bargain. 	Neither party followed up 	to 	schedule another
bargaining 	session, 	but 	CSEA exhibited no demonstrative behavior
indicating 	that 	its 	bargaining demand was 	no 	longer active.
Under these 	circumstances, 	it 	is 	clear that 	CSEA did not waive
its 	right 	to negotiate and 	the 	State was 	not 	relieved of 	its
bargaining obligation. 	Therefore, 	I 	conclude that 	the State
20

violated Dills Act 	section 3519(b) 	and 	(c) 	by failing to meet and
confer with CSEA over the negotiable 	effects 	of 	the ACMS, 	and 	I
would 	order 	the 	appropriate 	remedy.
21