State of California (Department of Veterans Affairs) (PERB 1344S)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA STATE 	EMPLOYEES
ASSOCIATION,
Charging 	Party,
v.
STATE OF CALIFORNIA 	(DEPARTMENT OF
VETERANS 	AFFAIRS),
Respondent.
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) 	Case No. 	SF-CE-199-S
PERB Decision No. 	1344-S
August 	19, 	1999
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Appearances; 	Carl Jaramillo, 	Labor Relations Representative, 	for
California State Employees Association; 	State of 	California
(Department 	of 	Personnel Administration) 	by Paul M. 	Starkey,
Labor Relations 	Counsel, 	for State of 	California 	(Department 	of
Veterans Affairs).
Before Caffrey, 	Chairman; 	Dyer and Amador, 	Members.
DECISION AND 	ORDER
AMADOR, 	Member: 	This 	case 	is before the Public Employment
Relations 	Board 	(Board) 	on appeal 	by the 	California State
Employees Association 	(CSEA) 	to a Board agent's 	dismissal
(attached) 	of 	the unfair practice 	charge and refusal 	to 	issue a
complaint. 	CSEA alleged that 	the 	State 	of 	California 	(Department
of Veterans Affairs) 	(State) 	violated section 3519(a) 	and 	(b) 	of
the Ralph C. 	Dills Act 	(Dills Act)1 by unilaterally changing the
lThe Dills Act 	is 	codified at Government 	Code 	section 3512
et seq. 	Section 3519 	states, 	in pertinent part:
It 	shall 	be unlawful 	for the 	state 	to do any
of 	the 	following:
(a) 	Impose 	or threaten to 	impose 	reprisals
on employees, 	to discriminate or threaten to
discriminate against employees, 	or otherwise
to interfere with, 	restrain, 	or coerce
(
e

workweeks 	of Activity Coordinators 	at 	the Veterans 	Home 	in
Yountville.
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.
The 	Board has 	reviewed the 	entire 	record 	in 	this 	case,
including 	the Board agent's warning and dismissal 	letters, 	the
unfair practice charge, 	CSEA's appeal, 	and the State's response.
The Board 	finds 	the warning and dismissal 	letters 	to be 	free 	of
prejudicial 	error and, 	therefore, 	adopts 	them as 	the decision of
the 	Board 	itself.
The unfair practice charge 	in Case No. 	SF-CE-199-S 	is hereby
DISMISSED WITHOUT LEAVE 	TO AMEND.
Chairman Caffrey and Member Dyer 	joined 	in 	this 	Decision.
22

STATE OF CALIFORNIA 	GRAY DAVIS, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
177 Post Street, 9th Floor
San Francisco, CA 94108-4737
(415)439-6940
e
April 21, 	1999
Carl Jaramillo
California State Employees' 	Association
2020 Challenger Drive, 	Suite 102
Alameda, 	CA 	94501
Re: 	DISMISSAL OF CHARGE/REFUSAL TO ISSUE COMPLAINT
California State Employees' Association v. 	State of
California 	(Department 	of Veterans Affairs)
Unfair Practice Charge No. 	SF-CE-199-S; 	First Amended Charge
Dear Mr. 	Jaramillo:
The above-referenced unfair practice charge, 	filed January 28,
1999, 	alleges the State of California, 	Department of Veterans
Affairs 	(State or Department) 	unilaterally altered the workweeks
of Activity Coordinators at the Veterans Home in Yountville. 	The
California State Employees' 	Association 	(CSEA) 	alleges this
conduct violates Government Code section 3519(a) 	and 	(b) 	of the
Ralph C. 	Dills Act 	(Dills Act or Act).
I 	indicated to you, 	in my attached letter dated March 5, 	1999,
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 March
12, 	1999, 	the charge would be dismissed.
On March 12, 	1999, 	I received a first amended charge. 	The
amended charge alleges the State was required to provide CSEA
with notice of 	its intent 	to change the work schedules and shifts
of employees at the Veterans Home. 	The charge further alleges
the State engaged in such shift and schedule changes 	to eliminate
the amount of overtime employees were receiving. 	However, 	the
amended charge suffers 	from the same deficiencies as the original
charge, 	and is therefore dismissed for the reasons provided
below.
Article 	19 of the Agreement provides the following with regard to
Hours of Work and Overtime:
r

Dismissal 	Letter
SF-CE-199-S
Page 2
19.1 	Workweek: 	The regular workweek of
full-time Unit 20 employees shall be 40
hours. 	However, 	workweeks and workdays of a
different number of hours may be 	scheduled by
the State in order to meet the needs of the
State. 	The employer shall not alter or
change 	shifts 	for the purpose of avoiding
overtime.
*
19.8: 	Shift Changes
(a) 	It is the intent of the parties that
there be as much advance notice as possible,
but in no case less that 15 calendar days, 	of
permanent shift changes when the change is
made at other than the employee's request.
Upon request, 	the department or its designee
will provide the employee with a reason for
the shift change.
On September 1, 	1998, 	Supervisor Margo McCandless informed
Activity Coordinators 	that permanent 	schedule changes would take
place during the following month. 	Ms. 	McCandless specifically
stated that 	this 	served as employees two-week notice of her
intent to change the shifts and schedules. 	On October 6, 	1998,
supervisors Nancy Kennedy and Ms. 	McCandless 	informed Activity
Coordinators at the Veterans Home in Yountville of changes in the
regular Monday through Friday workweek. 	The starting times of
these employees would now be 	staggered throughout 	the week.
As noted in my March 5, 	1999, 	letter, 	the Agreement between the
parties gives the State the exclusive right 	to change the
schedules and shifts depending upon their own need, 	provided the
State gives 	15 days notice. 	Such notice was provided to
employees. 	Additionally, 	although CSEA admits the State
possesses this right, 	it argues such a provision does not allow
the State to require some employees to work on Saturdays or
Sundays. 	However, 	nothing in the contract language limits the
State's right 	to develop and change the schedules of employees,
except 	the State may not 	change schedules 	for the purpose of
avoiding overtime.
With regard to the claim that 	the State made 	such changes 	for the
purpose of avoiding overtime, 	I 	spoke with Charging Party on
March 24, 	1999, 	and requested CSEA provide PERB with facts
demonstrating that employees are no longer receiving overtime pay
at the 	same level 	they received such pay prior to the shift
changes. 	Charging Party's 	representative 	stated he would provide
this information as soon as possible. 	After failing to receive
r
* 	* 	* 	*

Dismissal 	Letter
SF-CE-199-S
Page 3
the information after two weeks, 	I again contacted Charging
Party's representative on April 7, 	1999. 	On April 9, 	1999,
Charging 	Party 	stated he would provide 	information demonstrating
the effect on overtime pay. 	Instead, 	Charging Party provided me
with information demonstrating 	some employees 	are now working on
Saturdays and Sundays. 	To date, 	Charging Party has 	failed to
provide me with any information 	from which PERB could determine
that the State unilaterally changed the language 	in Article 	19.1.
As such, 	this allegation is also dismissed.
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 (2 0) calendar days
after service of this dismissal. 	(Cal. Code Regs., 	tit. 	8,
sec. 	32635(a).) 	Any document 	filed with the Board must 	contain
the case name and number, 	and the original and five 	(5) 	copies of
all documents must be provided to the Board.
A document 	is 	considered 	"filed" 	when actually received before
the close of business 	(5 p.m.) 	on the last day set for filing or
when mailed by certified or Express United States mail, 	as shown
on the postal receipt or postmark, 	or delivered to a common
carrier promising overnight delivery, 	as 	shown on the carrier's
receipt, 	not later than the last day set for filing. 	(Cal. 	Code
Regs., tit. 8, sec. 32135(a); see also Cal. Code Regs., tit. 8,
sec. 32130.)
A document 	is 	also considered 	"filed" 	when received by facsimile
transmission before 	the close of business on the 	last day for
filing together with a Facsimile Transmission Cover Sheet which
meets the requirements of Cal. Code Regs., tit.8, sec. 32135(d),
provided the 	filing party also places the original, 	together with
the required number of copies and proof of service, 	in the U.S.
mail. 	(Cal. Code. Regs., 	tit. 	8, 	secs. 	32135(b), 	(c) 	and (d) ;
see also Cal. Code Regs., tit. 	8, 	secs. 32090 and 32130.)
The Board's address is:
Public Employment .Relations Board
Attention: Appeals Assistant
1031 	18th Street
Sacramento, 	CA 	95814-4174
FAX: 	(916) 327-7960
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
(

Dismissal 	Letter
SF-CE-199-S
Page 4
days following the date of service of the appeal. 	(Cal. 	Code
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 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. 	A document 	filed by facsimile 	transmission
may be concurrently served via 	facsimile transmission on all
parties to the proceeding. 	(Cal. Code Regs., 	tit. 	8, 	sec.
32135(c).)
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 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 Kristin L. 	Rosi
Regional Attorney
Attachment
cc: Paul Starkey

STATE OF CALIFORNIA 	GRAY DAVIS, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
PERS
San Francisco Regional Office
177 Post Street, 9th Floor
San Francisco, CA 94108-4737
(415) 439-6940
e
March 5, 	1999
Carl Jaramillo
California State Employees' 	Association
2020 Challenger Drive, 	Suite 102
Alameda, 	CA 	94501
Re: 	WARNING LETTER
California State Employees' 	Association v. 	State of
California 	(Department of Veterans Affairs)
Unfair Practice Charge No. 	SF-CE-199-S
Dear Mr. Jaramillo:
The above-referenced unfair practice charge, 	filed January 28,
1999, 	alleges the State of California, 	Department of Veterans
Affairs 	(State or Department) 	unilaterally altered the workweeks
of Activity Coordinators at the Veterans Home in Yountville. 	The
California State Employees' 	Association 	(CSEA) 	alleges this
conduct violates Government Code section 3519(a) 	and 	(b) 	of the
Ralph C. 	Dills Act 	(Dills Act or Act).
Investigation of the charge revealed the 	following. 	CSEA is the
exclusive bargaining representative of State Bargaining Unit 	20,
which includes Activity Coordinators at the Veterans Home. 	The
State and CSEA are parties 	to a collective bargaining agreement
(Agreement) 	which expired on June 30, 	1995. 	Article 19 of the
Agreement provides 	the following with regard to Hours of Work and
Overtime:
19.1 	Workweek: 	The regular workweek of
full-time Unit 20 employees shall be 40
hours. 	However, 	workweeks and workdays of a
different 	number of hours may be 	scheduled by
the State 	in order to meet the needs of the
State. 	The employer shall not alter or
change shifts 	for the purpose of avoiding
overtime.
19.8: 	Shift Changes
(a) 	It is the intent of the parties that
there be as much advance notice as possible,
but in no case less that 15 calendar days, 	of
I.
* 	* 	* 	*

Warning Letter
SF-CE-199-S
Page 2
permanent 	shift 	changes when the change 	is
made at other than the employee's request.
Upon request, 	the department or its designee
will provide the employee with a reason for
the shift change.
On October 6, 	1998, 	supervisors Nancy Kennedy and Margo
McCandless 	informed Activity Coordinators 	at 	the Veterans Home 	in
Yountville of changes 	in the 	regular Monday through Friday
workweek. 	The 	starting times of these employees would now be
staggered throughout 	the week.
CSEA representatives Jo Harmon and Carl Jamamillo met with Ms.
Kennedy and Ms. 	McCandless regarding the changes and the State's
failure to notify CSEA, 	but the State refused to discuss the
matter.
Based on the above stated facts, 	the charge as presently written
fails to state a prima facie case of unilaterally change, 	for the
reasons provided below.
In determining whether a party has violated Dills Act 	section
3519 (c), 	PERB utilizes either the "per se" or "totality of
the conduct" 	test, 	depending on the specific conduct 	involved
and the effect 	of such conduct on the negotiating process.
(Stockton Unified School District 	(1980) 	PERB Decision No. 	143.)
Unilateral changes are considered 	"per se" violations if certain
criteria are met. 	Those criteria are: 	(1) 	the employer
implemented a change 	in policy concerning a matter within the
scope of representation, 	and 	(2) 	the change was implemented
before the employer notified the exclusive representative and
gave 	it an opportunity to request negotiations. 	(Walnut Valley
Unified School District 	(1981) 	PERB Decision No. 	160; 	Grant Joint
Unified High School District 	(1982) 	PERB Decision No. 	196.)
In the instant charge, 	CSEA asserts the State failed to notify
CSEA of the 	impending schedule 	changes and implemented the
schedule changes 	in order to circumvent overtime payments.
However, 	as provided by the Agreement, 	the State may change the
schedules of employees with 15 days notice to those employees.
As presently written, 	the charge fails to demonstrate the State
violated this provision. 	Additionally, 	CSEA fails to provide any
facts demonstrating the State made changes 	in the 	schedule in
order to circumvent overtime requirements. 	The charge does not
demonstrate 	the amount of overtime regularly paid to employees
has changed significantly, 	nor does the charge demonstrate the
State 	failed to provide an adequate reason for the changes. 	As
such, 	the charge fails to state a prima facie violation of the
Dills Act.

Warning Letter
SF-CE-199-S
Page 3
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 have the case number written on the top right
hand corner of 	the charge form. 	The amended charge must be
served on the 	respondent's representative and the original proof
of service must be filed with PERB. 	If I do not receive an
amended charge or withdrawal from you before March 12, 	1999, 	I
shall dismiss your charge. 	If you have any questions, 	please
call me at 	(415) 	439-6940.
Sincerely,
Kristin L. 	Rosi
Regional Attorney