State of California (Employment Development Department) (PERB 1318S)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA STATE 	EMPLOYEES
ASSOCIATION,
Charging 	Party,
v.
STATE OF CALIFORNIA 	(EMPLOYMENT
DEVELOPMENT DEPARTMENT),
Respondent.
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) 	Case No. 	SA-CE-1087-S
PERB Decision No. 	1318-S
March 	5, 	1999
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Appearances: 	Daniel S. 	Connolly, 	Attorney, 	for California State
Employees Association; 	State 	of 	California 	(Department 	of
Personnel Administration) 	by Timothy G. 	Yeung, 	Legal Counsel, 	for
State of 	California 	(Employment Development Department).
Before Caffrey, 	Chairman; 	Dyer and Amador, 	Members.
DECISION
CAFFREY, 	Chairman: 	This case is before the Public
Employment Relations Board 	(PERB or Board) 	on exceptions 	to a
proposed decision by a 	PERB administrative 	law judge 	(ALJ) 	filed
by the California State Employees Association 	(CSEA). 	In his
proposed decision, 	the ALJ dismissed 	the 	unfair practice 	charge
and 	complaint 	which alleged 	that 	the 	State 	of 	California
(Employment Development Department) 	(State or EDD) 	violated
section 3519(a), 	(b) 	and 	(c) 	of the Ralph C. 	Dills Act 	(Dills
Act)1 by changing 	the policy concerning the 	compensation of
1The Dills Act 	is 	codified at 	Government 	Code 	section 3512
et 	seq. 	Unless 	otherwise 	indicated all 	statutory references 	are
to 	the Government 	Code. 	Section 3519 	states 	in pertinent part:
It 	shall 	be unlawful 	for 	the 	state 	to do any
of 	the 	following:

on-call 	employees 	without 	providing 	CSEA with 	notice 	and 	the
opportunity 	to 	negotiate 	over 	the 	change.
(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.
The 	Board 	has 	reviewed 	the 	entire 	record 	in 	this 	case
including 	the 	proposed decision, 	the 	hearing 	transcript 	and 	the
filings 	of 	the 	parties. 	Based 	on 	the 	following discussion, 	the
Board 	hereby 	reverses 	the 	proposed 	decision 	and 	finds 	that 	the
State's 	conduct 	violated 	the 	Dills 	Act.
FINDINGS 	OF 	FACT
CSEA 	is 	the 	exclusive 	representative 	of 	various 	employees
working within 	the 	Information 	Systems 	Division 	(ISD) 	of 	EDD.
ISD 	is 	divided 	into 	four areas, 	each 	of 	which 	consists 	of 	several
teams 	of 	employees. 	There 	are 	seventeen 	teams 	within 	the 	four
areas.
Employees 	within 	some 	of 	these 	teams 	are 	required 	to 	be
on-call 	at 	various 	times 	when 	they 	are 	not 	at 	their 	normal 	work
site. 	These 	on-call 	employees 	are 	provided by 	EDD with 	the
equipment 	necessary 	to 	allow 	them 	to 	perform work 	at 	home 	when
called upon 	to 	do 	so.
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This 	case 	involves 	the 	issue 	of 	the 	compensation of 	ISD
on-call 	employees 	when they are 	called upon 	to perform work 	at
home.
CSEA and 	the 	State 	agreed to 	the 	following 	stipulation 	of
facts, 	which states 	in its entirety:
Stipulation 	of 	Facts
1. 	'On call' 	or standby status 	requires an
Employment 	Development 	Department 	(EDD)
employee 	within 	the 	Information 	Systems
Division 	to be 	available 	after 	regularly
scheduled work hours 	to 	respond 	to
requests 	for assistance and 	to perform
EDD work. 	While 	in an on call 	status,
the employee 	is provided with a pager, 	a
cellular 	telephone 	and a 	computer 	(or
informer) 	as needed to enable the
employee 	to 	respond 	to 	the 	request 	and
to perform the 	EDD work at 	his/her home.
2. 	Prior to October 29, 	1997, 	some
employees 	within 	the 	Information 	Systems
Division at 	the 	EDD who while 	on 	call
and who performed work at 	home, 	received
up to 	four hours 	of 	compensation. 	This
compensation practice 	gave 	on 	call
employees 	discretion 	to 	request 	up 	to
four hours 	overtime 	for work at 	home
which 	took less 	than 	four hours 	to
perform. 	Some 	employees 	exercised 	their
discretion not 	to 	claim the 	full 	four
hours 	of 	compensation 	for work performed
at home while 	on call.
3. 	The 	compensation practice 	as 	described
in 	item two 	applied 	to 	employees 	within
the Maintenance Unit 	and 	the 	Taxpayer
Accounting System Unit 	(TAS) 	within the
Information Systems 	Division at 	EDD.
4. 	EDD Supervisors Denny Smith, 	Rosemarie
Clark, 	and Joe Ortiz authorized and
applied 	the 	compensation practice 	as
described 	in 	item two.
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5. 	The 	compensation practice 	as 	described
in 	item two was 	in existence 	at 	least
since 1992.
6. 	EDD 	changed this 	compensation practice
on or about October 19, 	1997 	[sic] 	by-
memorandum from Bryan Gillgrass, 	Chief,
Information Systems Division, 	whereby on
call 	employees 	would now only be paid
for actual 	hours worked while at 	home.
Employees 	would be 	paid by 	quarter 	hour
increments 	if 	total 	work effort 	exceeded
seven minutes. 	According to Gillgrass,
work effort 	of 	less 	than seven minutes
is 	considered 	incidental 	and not
compensable. 	However, 	work of
increments 	less 	than 	7.5 	minutes may be
aggregated until 	the 	7.5 	minute minimum
is 	reached. 	Four hours 	call back pay
would be 	paid 	if 	staff 	return to
headquarters 	to 	resolve 	a problem.
7. 	EDD did not 	notice 	CSEA about 	the 	change
nor did it meet 	and 	confer with CSEA
about 	such change.
In addition to 	this 	stipulation, 	CSEA introduced a 	copy of 	a
memorandum on 	the 	subject 	of 	on-call 	time which was 	directed 	to
staff 	and managers 	within one 	of 	the 	four areas 	of 	ISD 	(CSEA
exhibit 9 ) . 	That memorandum, 	dated August 19, 	1997,
approximately 	two months 	prior 	to 	the 	alleged unilateral 	change
in this 	case, 	describes 	the 	"current policy" 	with regard to
compensation of 	on-call 	employees 	as 	follows:
If 	called and have 	to 	come 	in to office,
charge minimum of 4 hours OT 	[Overtime].
If 	called and work on solution at home, 	may
charge 4 hours OT 	(and more if used).
CSEA and 	the 	State 	are parties 	to 	a 	collective 	bargaining
agreement 	(CBA) 	with a negotiated term of July 	1, 	1992 	through
June 30, 	1995. 	CBA section 19.4 states, 	in pertinent part:
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19.4 	Call 	Back Time
a. 	An employee 	in Workweek Group 	1,
Workweek Group 2, 	or Workweek Subgroup 4A who
has 	completed a normal work shift, 	or an
employee 	in Workweek Subgroups 	4B and 	4D 	on
an authorized day off, 	when 	ordered back 	to
work, 	shall 	be 	credited with a minimum of
four hours' 	work time provided the call back
to work 	is 	without 	having been notified prior
to completion of 	the work shift, 	or the
notification 	is prior to 	completion of 	the
work 	shift 	and 	the work begins 	more 	than
three 	(3) 	hours after the completion of that
work 	shift.
At 	the 	time 	of 	the alleged unlawful 	conduct 	in this 	case 	in
October 	1997, 	the parties were engaged in negotiations 	over a
successor CBA. 	Therefore, 	CBA section 19.4 	remained 	in effect 	at
that 	time. 	(State 	of 	California 	(Department 	of 	Forestry and 	Fire
Protection) 	(1993) 	PERB Decision No. 	999-S at pp. 	8-9; 	California
State Employees' 	Assn. 	v. 	Public Employment Relations Bd. 	(1996)
51 Cal.App.4th 923, 	936 	[59 	Cal.Rptr.2d 488].)
The 	EDD Administrative Manual 	contains 	a 	section on 	call
back 	time 	(CSEA exhibit 	3) 	which includes 	essentially 	the 	same
language 	found 	in CBA section 19.4. 	The 	EDD Administrative
Manual 	also 	contains 	a 	section on overtime 	reporting 	(CSEA
exhibit 	4) 	which reiterates 	the policy with regard 	to
compensation when employees 	are 	called back 	to work.
Based on the 	conduct 	described 	in the parties' 	factual
stipulation, 	on February 20, 	1998, 	CSEA filed an unfair practice
charge alleging that the State, 	on October 29, 	1997, 	unilaterally
changed 	a 	longstanding 	practice 	concerning 	compensation 	for
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on-call 	employees 	within 	ISD who are 	called upon 	to perform work
at home. 	On March 17, 	199 8, 	PERB's Office of 	the General 	Counsel
issued a 	complaint 	alleging 	that 	the State, 	by that 	conduct,
violated section 3519(a), 	(b) 	and 	(c) 	of the Dills Act.
POSITIONS 	OF THE 	PARTIES
CSEA points out 	that 	the parties' 	CBA, 	as well 	as EDD's
Administrative Manual 	section concerning 	call 	back time, 	describe
compensation 	for 	employees 	called back 	to work at 	their normal
work site. 	However, 	the CBA and internal departmental policies
are 	silent 	with 	regard to 	compensation of 	on-call 	employees 	who
are 	called upon to perform work at 	home. 	Instead, 	as 	stipulated
by the parties, 	a 	longstanding practice had been established
governing 	compensation for 	ISD on-call 	employees. 	When EDD
unilaterally changed 	that practice 	as 	stipulated, 	it violated 	the
Dills Act.
The 	State 	responds 	that 	the parties' 	CBA provision
concerning 	call 	back 	time 	limits 	the 	circumstances 	in which
employees 	are 	entitled to at 	least 	four hours 	of 	compensation to
situations 	in which 	they are 	called back 	to work at 	their normal
work site. 	The provision does 	not 	authorize 	similar 	compensation
in 	situations 	in which on-call 	employees 	perform work at 	home.
When EDD 	changed 	the 	practice 	within 	the 	ISD as 	described 	in 	the
stipulation, 	it was merely enforcing the 	contractual 	provision.
Therefore, 	the State asserts, 	its 	conduct did not 	constitute an
unlawful 	unilateral 	change, 	pursuant 	to the Board's holding 	in
Marysville Joint Unified School 	District 	(1983) 	PERB Decision
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No. 	314 	(Marysville)	. . . 	. 	Furthermore, 	the State asserts that the
ISD 	compensation practice 	for on-call 	work at home, 	which 	is
described in the parties' 	factual 	stipulation, 	was 	isolated,
unauthorized and 	in violation 	of 	EDD policy.
DISCUSSION
To prevail 	in a 	case 	involving an alleged unlawful
unilateral 	change, 	the 	charging party must 	establish that 	the
employer breached or altered the parties' 	written agreement 	or
established past practice; 	the 	action was 	taken without 	giving
the 	exclusive 	representative 	notice 	or 	the 	opportunity 	to bargain
over 	the 	change; 	the 	change was 	not merely an 	isolated breach but
represented 	a 	change 	in policy 	having 	a 	generalized 	or 	continuing
impact 	on the 	terms 	and conditions 	of 	employment 	of 	bargaining
unit members; 	and the 	change 	concerned a matter within 	the 	scope
of 	representation. 	(Grant 	Joint Union High School 	District
(1982) 	PERB Decision No. 	196 	(Grant); 	Pajaro Valley Unified
School District 	(1978) 	PERB Decision No. 	51.)
Applying 	this 	standard, 	it 	is 	clear that wages 	and hours are
enumerated subjects 	of bargaining 	in Dills Act 	section 3516, 	and
that 	the 	subject 	of 	overtime 	compensation 	is within 	the 	scope 	of
representation. 	(State of 	California 	(Department 	of
Transportation) 	(1983) 	PERB Decision No. 	333-S.) 	It is also
undisputed that 	EDD 	took the action which 	forms 	the basis 	of 	this
dispute 	without 	providing 	CSEA with notice 	or 	the 	opportunity 	to
bargain, 	as 	is 	indicated in the parties' 	factual 	stipulation.
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Turning 	to 	the 	question of 	whether a 	contractual 	provision
was breached, 	the parties agree 	that 	the 	"Call 	Back Time"
provision 	of 	CBA section 	19.4 	provides 	that 	employees 	called back
to work at 	their normal 	work 	site 	shall 	be 	credited with a
minimum four hours 	of 	work time. 	They also agree 	that 	CBA
section 	19.4 	does 	not 	authorize 	similar 	compensation 	for 	on-call
employees 	called upon to work at home. 	Therefore, 	the 	State
asserts, 	employees 	are entitled to 	compensation for 	four hours 	of
worktime 	only 	if 	they are 	required 	to 	return 	to work at 	their
normal work site. 	Consequently, 	EDD's decision to 	change 	the
practice 	of 	providing 	"call-back 	compensation" 	to 	on-call
employees 	who work at 	home 	is 	expressly allowed under 	PERB's
Marysville 	decision.
The 	State's 	argument 	is without merit. 	The Board held 	in
Marysville 	that 	the 	fact 	that 	an employer has 	not 	exercised
contractual 	rights 	in the past, 	does not preclude 	it 	from doing
so in the future. 	However, 	Marysville involved a subject 	- 	the
length of 	the 	employee 	lunch break 	- 	which was 	clearly and
explicitly addressed within a CBA provision. 	Here, 	the 	"Call
Back Time" 	provision of 	the parties' 	CBA deals with compensation
of 	employees 	called back to work at 	their normal 	work site, 	but
it 	does 	not 	address 	compensation 	for on-call 	employees 	called
upon 	to work at 	home. 	Nor does 	the provision 	contain language
limiting 	the 	compensation 	it 	describes 	only to employees 	called
back to work at 	their normal work site. 	Furthermore, 	the EDD
Administrative Manual 	sections 	introduced 	into 	evidence 	simply
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repeat 	elements 	of 	the CBA provision on 	call 	back time, 	and also
do 	not 	address 	compensation 	for 	on-call 	employees 	who work at
home. 	Therefore, 	the subject of 	the disputed conduct 	in this
case 	- 	compensation of on-call employees working at home 	- 	is not
addressed 	in 	either 	the 	CBA or 	the 	EDD Administrative Manual.
The 	State 	derived no Marysville 	right 	concerning 	compensation 	of
those 	employees 	from the 	contractual 	provision pertaining 	to 	call
back time.
Accordingly, 	this 	case 	involves 	an alleged breach by EDD 	of
an established past practice. 	That practice 	is 	clearly defined
in the parties' 	factual 	stipulation:
This 	compensation practice 	gave 	on 	call
employees 	discretion to 	request 	up 	to 	four
hours 	overtime 	for work at 	home which 	took
less 	than 	four hours 	to perform.
This 	description 	of 	the 	established practice 	is 	confirmed 	in 	CSEA
exhibit 	9 	which describes 	"current policy" 	for on-call
compensation 	in one 	of 	ISD's 	four areas 	as:
If 	called and work on solution at home, 	may
charge 4 hours OT 	(and more if used).
The 	State 	stipulated 	to 	the 	fact 	that 	this was 	the practice 	"at
least 	since 	1992" 	which it altered on or about October 29, 	1997.
Therefore, 	by the undisputed terms of 	the parties' 	factual
stipulation and other documentary evidence, 	it has been
demonstrated 	that 	EDD altered a 	longstanding, 	established past
practice.
The 	State 	also argues 	that 	the practice described 	in 	the
factual 	stipulation was 	isolated. 	This 	appears 	to be an
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assertion that, 	when EDD altered that practice, 	it 	represented
only an 	isolated 	change, 	and did not 	change 	a policy having a
generalized 	impact 	on employees, 	another element 	of 	the Board's
Grant 	standard 	for 	determining 	whether a unilateral 	change 	has
occurred.
This 	argument 	also 	fails. 	The 	record establishes 	that 	there
are 	seventeen 	teams 	of 	employees within the 	four areas 	of 	ISD,
not 	all 	of 	which 	include 	employees 	who are 	required 	to be
on-call. 	Donna Haslett, 	who manages 	one of 	the 	four ISD areas,
testified 	that 	two 	of 	her 	four 	teams 	included on-call 	employees
at 	the 	time of 	the alleged unlawful 	conduct. 	The parties'
factual 	stipulation indicates 	that 	one of 	those 	two teams,
supervised by Joe Ortiz, 	followed the 	compensation practice
described in the 	stipulation. 	In a second of 	the 	four 	ISD areas,
the 	evidence 	establishes 	that 	at 	least 	two of 	the 	four teams,
supervised by Denny Smith and Rosemarie 	Clark, 	include 	on-call
employees. 	Both of 	these 	teams 	followed the practice described
in the 	factual 	stipulation. 	In a third area, 	all 	teams which
include 	on-call 	employees 	followed 	the practice 	described 	in 	the
factual 	stipulation, 	as verified by CSEA exhibit 	9. 	The 	record
contains 	no 	information 	concerning 	on-call 	practices 	in the
fourth area of 	ISD. 	This 	evidence establishes 	that 	the
compensation practice 	described 	in 	the 	factual 	stipulation was
pervasive 	and predominant within 	ISD, 	and not 	isolated as 	the
State asserts.
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The 	State 	also 	asserts 	that 	the 	ISD practice 	concerning
compensation of 	on-call 	employees 	for work at 	home was
unauthorized and violated EDD policy. 	However, 	in defining 	the
official 	EDD policy on this 	subject, 	the State points 	to CBA
section 	19.4 	and EDD Administrative Manual 	provisions 	relating 	to
compensation of 	employees 	called back 	to work at 	their normal
work site. 	As 	noted above, 	these provisions do not describe a
policy with 	regard 	to 	compensation 	of 	on-call 	employees 	working
at 	home. 	The 	State presented no 	evidence 	to establish that 	EDD
had a policy 	on 	this 	subject 	with which 	ISD's 	longstanding
practice was 	inconsistent. 	In fact, 	it 	cannot be concluded from
the 	record 	in 	this 	case 	that 	any other division 	or 	organizational
unit 	within EDD was 	following an on-call 	employee 	compensation
practice 	which 	differed 	from 	that 	being 	followed 	in 	ISD.
Therefore, 	the State's assertion that 	the 	ISD practice was
unauthorized 	and violated 	EDD policy 	is 	rejected.
Summarizing, 	it has been demonstrated that 	the 	State altered
the 	established past 	practice 	concerning 	the 	compensation 	of
on-call 	employees 	called upon to work at 	home. 	It 	did so without
providing 	CSEA with notice 	or 	the 	opportunity 	to bargain over 	the
change, 	which had a 	generalized and 	continuing 	impact 	on 	the
terms 	and conditions 	of 	employment 	of 	bargaining unit members.
The Board concludes 	that, 	by this 	conduct, 	the State 	failed and
refused 	to meet 	and 	confer 	in good 	faith 	in violation of 	Dills
Act 	section 	3519(c), 	and denied CSEA and bargaining unit members
their rights 	in violation of Dills Act 	section 3519(a) 	and 	(b).
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REMEDY
Dills Act 	section 3514.5(c) 	empowers 	the Board to:
. 	. 	. 	issue a decision and order directing an
offending party 	to 	cease 	and desist 	from the
unfair practice 	and 	to 	take 	such affirmative
action, 	including but not 	limited to 	the
reinstatement 	of 	employees 	with or without
back pay, 	as will 	effectuate the policies 	of
this 	chapter.
In order 	to 	remedy the unlawful 	conduct 	in this 	case and
effectuate the policies of the Dills Act, 	it is appropriate to
order 	the 	State 	to 	cease 	and desist 	from the unlawful 	conduct,
and 	to make whole 	the 	affected employees 	for compensation 	they
would have 	received but 	for 	that 	unlawful 	conduct.
It 	is 	also appropriate 	that 	the State be 	required to post 	a
notice 	incorporating 	the 	terms 	of 	the Order at 	EDD 	sites 	where
such notices 	are 	customarily placed. 	This 	notice 	should be
subscribed by an authorized agent 	of 	EDD, 	indicating 	that 	it will
comply with the 	terms 	therein. 	The 	notice 	shall 	not be 	reduced
in size, 	defaced, 	altered or covered by any other material.
Posting 	such a notice 	will 	provide 	employees 	with notice 	that 	EDD
has 	acted 	in an unlawful 	manner and 	is 	being 	required 	to 	cease
and desist 	from this activity. 	It 	effectuates 	the purposes 	of
the Dills Act 	that 	employees be 	informed of 	the 	resolution of 	the
controversy and will 	announce 	EDD's 	readiness 	to 	comply with 	the
ordered remedy. 	(See 	Placerville Union School District 	(19 78)
PERB Decision No. 	69.) 	In Pandol 	& Sons v. 	Agricultural 	Labor
Relations Bd. 	(1979) 	98 Cal.App.3d 580, 	587 	[159 Cal.Rptr. 	584],
the 	California District 	Court 	of Appeals 	approved a 	similar
12

posting requirement. 	(See also, 	NLRB v. 	Express 	Publishing Co.
(1941) 	312 U.S. 	426 	[8 LRRM 415].)
ORDER
Based on the 	foregoing 	findings 	of 	fact, 	conclusions 	of 	law,
and the 	entire 	record in the 	case, 	it 	is 	found that 	the State of
California 	(Employment Development Department) 	(EDD) 	violated the
Ralph C. 	Dills 	(Dills Act), 	Government Code section 3519(a), 	(b)
and 	(c). 	Therefore, 	it is hereby ORDERED that EDD, 	its
administrators 	and 	representatives 	shall:
A. 	CEASE AND DESIST 	FROM:
1. 	Unilaterally modifying 	compensation practices 	for
on-call 	employees within the 	Information Services Division 	(ISD).
2. 	Denying to 	the 	California 	State 	Employees
Association 	(CSEA) 	the right 	to represent 	its members.
3. 	Interfering with the 	right 	of 	individual 	employees
to be 	represented by an 	employee 	organization 	of 	their 	choice.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE 	THE 	POLICIES 	OF THE DILLS ACT:
1. 	Reimburse 	EDD employees within the 	ISD 	for any
lost 	compensation 	they would 	have 	received had 	EDD 	not 	unlawfully
modified 	its 	compensation practices 	for on-call 	employees 	with
seven 	(7) 	percent 	interest per annum.
2. 	Within ten 	(10) 	days 	following 	the date 	this
decision is no longer subject 	to appeal, 	post at all work
locations 	where 	notices 	to 	employees 	are 	customarily posted,
copies 	of 	the Notice 	attached hereto as 	an Appendix. 	The Notice
must be 	signed by an authorized agent 	of 	EDD, 	indicating 	that 	EDD
13

will 	comply with 	the 	terms 	of 	this 	Order. 	Such posting 	shall be
maintained 	for a period of 	thirty 	(30) 	consecutive workdays.
Reasonable 	steps 	shall be 	taken to 	ensure 	the Notice 	is 	not
reduced 	in 	size, 	altered, 	defaced or covered with any other
material.
3. 	Written notice 	of 	the 	actions 	taken 	to 	comply with
this 	Order shall 	be made 	to 	the 	Sacramento Regional 	Director of
the 	Public 	Employment 	Relations 	Board, 	in accordance with the
regional director's 	instructions. 	Continue to report, 	in
writing, 	to 	the 	regional 	director thereafter as 	directed. 	All
reports 	to 	the 	regional 	director 	shall 	be 	concurrently 	served on
CSEA herein.
Member Amador 	joined 	in 	this 	Decision.
Member Dyer's 	dissent begins 	on page 	15.
14

DYER, 	Member, 	dissenting: 	In overturning the Public
Employment 	Relations 	Board 	(PERB 	or Board) 	administrative 	law
judge's 	(ALJ) 	proposed decision, 	the majority holds 	that a small
group 	of 	supervisors 	in one division of 	the 	State 	of 	California
(Employment Development Department) 	(State or EDD) 	can create a
past 	practice 	that 	supersedes 	both EDD's 	established practice 	and
the 	statewide 	overtime policy 	incorporated 	into 	the 	expired
memorandum of understanding 	(MOU) 	between the parties. 	I
disagree.
For the reasons 	that 	follow, 	I 	conclude that 	the 	isolated
and 	inconsistently applied procedures 	of 	a handful 	of 	supervisors
in a 	single division of 	EDD 	is 	insufficient 	to 	establish a
binding practice. 	Even assuming 	that 	this 	isolated breach were
sufficient 	to supersede EDD's existing policy, 	however, 	EDD's
actions 	were 	consistent 	with the 	statewide 	overtime policy
established by the 	California Code 	of 	Regulations 	(CCR) 	and
incorporated into 	the 	expired MOU. 	Accordingly, 	I would dismiss
the unfair practice 	charge 	and 	complaint.
BACKGROUND
As 	the majority notes, 	the parties 	stipulated that 	EDD
periodically 	requires 	employees 	in 	its 	Information Systems
Division 	(ISD) 	to be 	available after 	regular work hours 	to
respond 	to 	requests 	for assistance 	and 	to perform EDD work. 	The
parties 	refer 	to 	such periods 	of mandated availability as 	time
spent 	"on call." 	Prior to October 29, 	1997, 	three supervisors in
15

two units 	of 	the 	ISD1 permitted 	some 	employees 	to 	"request up 	to
four hours" 	of 	overtime 	for on-call 	work 	that 	took 	less 	than 	four
hours 	to perform.2 [Emphasis 	added.]
ISD managers 	became 	aware 	of 	the 	foregoing 	compensation
practice in the Fall of 1997. 	On October 29, 	1997, 	after
consultation with 	staff 	from EDD's 	Human Resource 	Services
Division, 	the 	Chief 	of 	the 	ISD promulgated a memorandum
indicating 	that 	employees 	were 	entitled 	to 	overtime 	compensation
only 	for 	the 	time actually worked while 	on call. 	The memorandum
indicated 	that 	overtime 	would 	accrue 	in quarter-hour 	increments
so 	long as 	the 	total 	time worked exceeded seven minutes. 	EDD did
not 	provide 	the 	California 	State 	Employees 	Association 	(CSEA)
with notice 	or an 	opportunity 	to bargain prior 	to 	releasing 	the
October 29 	memorandum.
On February 20, 	1998, 	CSEA filed a charge asserting that 	the
October 	29 	memorandum constituted a unilateral 	change 	in
violation of section 3519(a), 	(b) 	and 	(c) 	of the Ralph C. 	Dills
Act 	(Dills Act) .3
l
ISD 	is 	divided 	into 	14 units 	and employs 	17 	supervisors
and managers, 	approximately 	15 	of whom directly supervise
employees.
2As used 	in this dissent, 	the 	term 	"on-call work" 	refers 	to
work performed away 	from the work place while 	on 	call. 	This 	type
of work 	is 	distinct 	from the 	situation where an employee 	is
called back to 	the worksite 	after his 	or her normal 	work shift.
(See Cal. 	Code Regs., 	tit. 2, 	sec. 	599.708.)
3Dills Act 	section 3519 provides, 	in relevant part:
It 	shall 	be unlawful 	for 	the 	state 	to do any
of 	the 	following:
-
16

DISCUSSION
It 	is well 	established that 	an employer's 	unilateral 	change
in 	terms 	and 	conditions 	of 	employment 	within the 	scope 	of
negotiations 	is 	a per se 	refusal 	to negotiate. 	(State 	of
California 	(Department 	of Motor Vehicles) 	(1998) 	PERB Decision
No. 	1291-S at pp. 	3-4; 	State of California 	(Department of
Transportation) 	(1983) 	PERB Decision No. 	361-S at p. 	14; 	see
Pajaro Valley Unified School 	District 	(1978) 	PERB Decision
No. 	51 at p. 	5.) 	To prevail 	on a unilateral 	change allegation,
the 	charging party must demonstrate 	that: 	(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 was not merely an isolated breach of
the 	contract, 	but amounted to a change 	in policy; 	and 	(4) 	the
change 	in policy concerns 	a matter within the 	scope 	of
representation. 	(State 	of 	California 	(Department 	of Motor
Vehicles) 	(1998) 	PERB Decision No. 	1251-S 	(Motor Vehicles) 	at
(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.
17

p. 	5; 	see Grant Joint Union High School District 	(19 82) 	PERB
Decision No. 	19 6 at p. 	10; 	Davis Unified School District, 	et al.
(1980) 	PERB Decision No. 	116 at pp. 	14-15.)
It 	is 	undisputed that 	EDD 	issued the 	October 29 	memorandum
without 	giving 	CSEA notice 	or an 	opportunity 	to bargain.
Further, 	the October 29 memorandum was an articulation of 	State-
wide policy. 	Finally, 	the matter of 	overtime compensation is
within the 	scope 	of negotiations. 	(State of 	California
(Department of Transportation) 	(1983) 	PERB Decision No. 	333-S at
p. 	10; 	see Compton Unified School District 	(1989) 	PERB Decision
No. 	784 at p. 	5.) 	Accordingly, 	the only issue in this 	case 	is
whether 	the 	October 29 	memorandum constituted a 	change 	in EDD's
overtime 	policy.
CSEA bears 	the burden of 	establishing 	the 	existence 	of 	any
past 	practice 	and demonstrating 	that 	EDD's 	October 	29 	memorandum
deviated 	from that past practice. 	(State 	of 	California
(Departments of 	Personnel Administration. 	Banking,
Transportation, 	Water Resources and Board of 	Equalization) 	(1998)
PERB Decision No. 	1279-S 	(Personnel Administration, 	et a l . ) ,
proposed dec. 	at pp. 	37-39 	[dismissing unilateral 	change
allegation because 	union had 	failed 	to demonstrate 	existence 	of 	a
past practice 	from which the 	employer had deviated]; 	Motor
Vehicles at p. 	6.) 	As noted above, 	the parties 	in the 	instant
matter stipulated that 	three 	supervisors 	in 	two units 	of 	one
division of 	EDD permitted 	"some 	employees" 	to request up 	to 	four
18

hours 	of 	overtime 	for on-call 	work that 	took less 	than 	four hours
to complete.
Departmental 	Policy
Relying almost 	exclusively on 	the 	stipulation, 	CSEA declined
to present 	any witnesses 	during 	its 	case 	in chief. 	EDD 	called
three witnesses 	in rebuttal. 	In considering the evidence, 	the
ALJ balanced 	the 	terms 	of 	the 	stipulation against 	the 	live
testimony 	and 	concluded 	that 	CSEA had 	failed 	to meet 	its 	burden
of proof.
Here, 	[CSEA] 	established that three
supervisors 	allowed 	employees 	to 	claim,
without 	question their hours 	of 	credit 	for
on[-]call 	hours not at 	the work site.
Against 	this 	evidence 	is 	the department's
practice 	of 	paying 	only 	for 	time 	actually
worked when not at 	the work site, 	and four
hours 	credit only at 	the work site. 	[Data
Processing Manager III, 	Donna J.] 	Haslett
testified without 	contradiction 	that 	the
department 	policy was 	to pay only 	for 	time
worked when on 	call 	not 	at 	the work site.
As the State argues, 	the three managers'
actions 	were not 	consistent 	with 	the
department and were, 	in fact, 	exceptions to
department policy. 	Moreover, 	the evidence
does 	not 	establish 	that 	the practice was 	to
provide 	four hours 	compensation 	for off-site
work, 	but 	only that 	the 	three managers
accepted, 	without question, 	an employee's
claim for up 	to 	four hours 	compensation.
I 	conclude the October 29, 	1997, 	memo was
merely a 	reaffirmation of 	what 	had been
office policy, 	and did not 	represent 	a 	change
in the 	status 	quo. 	Since 	the memo only
reflected what 	had been office policy, 	its
promulgation could not 	be 	a violation 	of 	the
duty 	to meet 	and 	confer 	required by 	the 	Dills
Act. 	Accordingly, 	the complaint, 	and
underlying unfair practice 	charge 	should be
dismissed. 	[Proposed dec. 	at pp. 	9-10.]
19

The ALJ's 	findings 	are 	supported by 	the 	record and 	I 	see 	no
reason to disturb 	them. 	(State 	of 	California 	(Departments 	of
Personnel Administration and Transportation) 	(1997) 	PERB Decision
No. 	1227-S at pp. 	8-9 	[noting that 	the Board grants 	great
deference to ALJs' 	factual findings]; 	see Duarte Unified
Education Association 	(Fox) 	(1997) 	PERB Decision No. 	1220 at
p. 	3.)
In rejecting the ALJ's 	findings, 	the majority turns 	the
burden of 	proof 	on 	its head, 	claiming 	that 	EDD presented
insufficient 	evidence 	to 	establish 	that 	it 	had a policy of paying
on-call 	employees 	only for 	time worked 	(cf. 	Personnel
Administration, 	et al., proposed dec. at pp. 	37-39; Motor
Vehicles 	at p. 	6.) 	Nonetheless, 	both the hearing transcript and
EDD's Administrative Manual 	demonstrate 	that 	EDD had an
established policy 	of 	paying 	employees 	only 	for 	time 	worked while
on 	call.4
California Code 	of 	Regulations
Even assuming 	that 	CSEA had presented 	evidence 	sufficient 	to
establish a past 	practice, 	that practice would be 	inconsistent
with 	the provisions 	of 	the 	expired MOU between the parties. 	The
Board has 	long held 	that 	an 	employer 	is 	entitled 	to 	resort 	to 	the
provisions 	of 	a negotiated agreement. 	Since 	the 	October 29
4As 	the ALJ noted, 	an EDD witness 	testified, 	without
contradiction, 	that 	it was 	EDD's 	established policy to pay
employees 	only 	for actual 	time worked while 	on call. 	Further,
EDD's 	Administrative Manual 	defines 	overtime 	as 	time 	actually
worked 	in 	excess 	of 	the 	employee's 	regularly 	scheduled work week.
This 	definition addresses 	the 	issue 	in this 	case: 	overtime 	in
non-callback 	situations.
20

memorandum was 	consistent 	with 	the provisions 	of 	the 	expired MOU,
I 	conclude 	that 	the 	October 29 	memorandum did not 	constitute 	a
unilateral 	change and did not violate 	the Dills Act.
In 1983, 	the State employer adopted comprehensive
regulations 	controlling 	overtime 	compensation 	for 	employees 	of
the State of California. 	(CCR, 	tit. 	2, 	sec. 	599.700 et seq.)5
These 	regulations 	define 	overtime 	as 	any authorized 	time 	worked
in excess 	of 	an employee's 	regularly 	scheduled workweek. 	(CCR,
tit. 	2, 	sec. 	599.700.)6 The stipulated definition of on-call
work 	falls within the 	CCR's 	definition of 	overtime. 	Accordingly,
the 	Board must measure 	the 	alleged unilateral 	change 	in on-call
compensation against 	the 	framework 	of 	the 	CCR's 	overtime
regulations.7
5Since 	neither party provided argument 	regarding 	the 	impact
of 	the 	California Code 	of 	Regulations 	on EDD's 	duty 	to pay 	for on
call work, 	I would have preferred to request 	that 	the parties
file 	supplemental briefs addressing 	this 	subject. 	In light 	of
the majority's disposition of 	the case, 	however, 	such briefs
would appear 	to have 	an extremely 	limited utility. 	Accordingly,
I 	take administrative 	notice 	of 	the 	CCR and 	the 	expired MOU.
(State of 	California 	(Department 	of 	Corrections) 	(1995) 	PERB
Decision No. 	1107-S at p. 	9, 	fn. 	4 	[PERB may take official notice
of 	terms 	of an MOU filed with PERB]; 	State of California
(Department 	of 	Forestry and Fire 	Protection) 	(1993) 	PERB Decision
No. 	999-S at p. 	8, 	fn. 	5.)
6The 	CCR also provides 	special 	compensation 	for 	situations
in which an employee 	is 	called back 	to 	the worksite 	after 	regular
working hours. 	(CCR, 	tit. 	2, 	sec. 	599.708.)
7The 	provisions 	of 	the 	CCR bind both 	the 	State 	and 	third
parties 	such as 	CSEA. 	(See Agricultural 	Labor Relations Bd. 	v.
Exeter Packers. 	Inc. 	(1986) 	184 Cal.App.3d 483 	[229 Cal.Rptr. 	87]
[enforcing Agricultural 	Labor Relations 	Board 	regulations 	against
citrus growers]; 	Pozar v. 	Department of Transportation 	(1983) 	145
Cal.App.3d 269 	[193 	Cal.Rptr. 	202] 	[mandamus will 	lie to compel
an agency to comply with its own rules]; 	see Cal. 	Gov. 	Code sec.
11340 et seq.) 	In addition, 	employee organizations, 	such as
21

CSEA, 	have 	the 	opportunity to negotiate 	over any proposed
regulations 	relating 	to matters within the 	scope 	of
representation. 	(Dills Act sec. 	3516.5.) 	In this case, 	the
expired MOU 	specifically 	incorporates 	all 	existing 	overtime
regulations. 	(MOU, 	Art. 	5, 	sec. 	5.6.) 	CSEA has not demonstrated
that 	the 	parties 	have 	reached any additional 	agreement 	setting
out 	a 	different 	standard 	for 	EDD 	or 	for any division or
subdivision 	thereof.
The 	CCR provides 	that 	"[o]vertime will 	be 	credited on a 	one-
quarter 	of 	an hour basis 	with a 	full-quarter hour 	credit 	to be
granted if half 	or more of 	the period is worked." 	(CCR, 	tit. 	2,
sec. 	599.704.) 	Likewise, 	the October 29, 	1997 memorandum
provides 	that 	employees 	are paid only 	for 	time 	actually worked
while 	on 	call 	and that 	"[p]ay 	is by quarter hour 	increments 	if
the total work effort exceeds 	seven 	(7) 	minutes."
I 	find 	that 	the 	October 29 	memorandum 	is 	entirely 	consistent
with the 	overtime 	compensation provisions 	of 	the 	CCR. 	Since both
the MOU and overtime provisions 	of 	the 	CCR were 	subject 	to 	the
meet and confer provisions of 	the Dills Act, 	I 	conclude 	that, 	far
from constituting an unlawful 	unilateral 	change 	in 	EDD's 	overtime
policy, 	the October 29 memorandum was 	a lawful 	reversion to a
negotiated procedure. 	(See 	State 	of 	California 	(Employment
Development Department) 	(1998) 	PERB Decision No. 	1247-S at p. 	4;
State of California 	(Corrections) 	(1996) 	PERB Decision No. 	1149-S
at p. 	4; 	Marysville Joint Unified School District 	(1983) 	PERB
Decision No. 	314 at pp. 	9-10; 	Dills Act sec. 	3516.5; MOU, Art. 	5,
sec. 	5.6.)
22

CONCLUSION
I 	conclude 	that 	the 	actions 	of 	a handful 	of 	supervisors 	in a
single 	division 	of 	EDD were 	insufficient 	to 	supersede 	EDD's
established policy 	of 	paying 	only 	for 	time worked while 	on 	call.
Even assuming 	that 	their actions 	were 	sufficient 	to 	create 	a past
practice 	in some 	circumstances, 	the October 29 memorandum was
consistent 	with 	the provisions 	of 	the 	expired MOU and 	I 	conclude
that 	the provisions 	of 	the MOU controlled 	over any past 	practice
created by the 	supervisors 	of 	the 	ISD. 	Accordingly, 	the unfair
practice 	charge 	and 	complaint 	in Case No. 	SA-CE-1087-S 	should be
dismissed.
23

APPENDIX
NOTICE 	TO 	EMPLOYEES
POSTED 	BY ORDER 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
An Agency of 	the 	State 	of 	California
After a hearing 	in Unfair Practice Case No. 	SA-CE-1087-S,
California State 	Employees Association v. 	State 	of 	California
(Employment Development Department). 	in which all parties had the- -
right 	to participate, 	it has been found that 	the State of
California 	(Employment Development Department) 	(EDD) 	violated the
Ralph C. 	Dills Act 	(Dills Act), 	Government Code section 3519(a),
(b) and (c).
As 	a result 	of 	this 	conduct, 	we have been ordered to post
this Notice and we will:
A. 	CEASE AND DESIST FROM:
1. 	Unilaterally modifying 	compensation practices 	for
on-call 	employees within the 	Information Services Division 	(ISD).
2. 	Denying to 	the 	California State 	Employees
Association the 	right 	to 	represent 	its members.
3. 	Interfering with the 	right 	of 	individual 	employees
to be 	represented by an 	employee 	organization 	of 	their 	choice.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE THE 	POLICIES 	OF THE DILLS ACT:
1. 	Reimburse 	EDD employees within the 	ISD 	for any
lost 	compensation 	they would have 	received had 	EDD 	not 	unlawfully
modified 	its 	compensation practices 	for 	on-call 	employees 	with
seven 	(7) 	percent 	interest per annum.
Dated: 	STATE 	OF 	CALIFORNIA 	(EMPLOYMENT
DEVELOPMENT 	DEPARTMENT)
By: Authorized 	Agent
THIS 	IS AN OFFICIAL NOTICE. 	IT MUST REMAIN POSTED 	FOR AT LEAST
THIRTY 	(30) 	CONSECUTIVE WORKDAYS 	FROM THE DATE 	OF 	POSTING AND
MUST NOT BE REDUCED 	IN SIZE, 	DEFACED, 	ALTERED OR COVERED BY ANY
MATERIAL.