State of California (Department of Motor Vehicles) (PERB 1347S)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT RELATIONS 	BOARD
CALIFORNIA UNION OF 	SAFETY
EMPLOYEES,
Charging 	Party,
v.
STATE OF CALIFORNIA 	(DEPARTMENT OF
MOTOR VEHICLES),
Respondent.
)
)
)
) 	Case No. 	SA-CE-1222-S
PERB Decision No. 	1347-S
September 	2, 	1999
)
))
)
)
)
)
Appearances: 	Linda M. 	Kelly, 	Attorney, 	for California Union of
Safety Employees; 	State of 	California 	(Department 	of 	Personnel
Administration) 	by Carol A. 	McConnell, 	Assistant Chief Counsel,
for State of California 	(Department of Motor Vehicles).
Before Caffrey, 	Chairman; 	Dyer and Amador, 	Members.
DECISION
DYER, 	Member: 	This 	case comes before the Public Employment
Relations 	Board 	(PERB or Board) 	on 	the 	California Union of 	Safety
Employees 	(CAUSE) 	appeal 	from a Board agent's partial 	dismissal
(attached) 	of 	its unfair practice charge. 	As amended, 	the charge
alleged 	that 	the 	State 	of 	California 	(Department 	of Motor
Vehicles) 	(Department) 	violated section 3519(a), 	(b) 	and 	(c) 	of
the Ralph C. 	Dills Act 	(Dills Act)1 when it unilaterally changed
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:
(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

its 	policy 	concerning work 	schedules 	and driver's 	license 	exams
conducted during 	non-daylight 	hours 	and when 	it 	bypassed 	CAUSE
and 	negotiated 	directly with 	employees.2
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 	original 	and amended unfair practice 	charge, 	the
partial 	warning and dismissal 	letters, 	CAUSE'S 	appeal 	and the
Department's 	response 	thereto. 	The Board 	finds 	the partial
warning and dismissal 	letters 	to be 	free 	from prejudicial 	error
and adopts 	them as 	the decision of 	the 	Board itself.3
2This 	appeal 	concerns 	only those 	allegations 	concerning
employee work schedules. 	On May 10, 	1999, 	the Board agent 	issued
a 	complaint 	alleging 	that 	the Department violated 	the Dills Act
when 	it 	unilaterally 	implemented a policy 	requiring 	License
Registration Examiners 	(LREs) 	in the Department's 	Fullerton
office 	to give 	routine driver's 	license exams during non-daylight
(pre-dawn) 	hours 	and when 	it 	negotiated directly with LREs
regarding 	those pre-dawn 	licensing 	exams.
3On appeal, 	CAUSE contends 	that 	the Board agent 	erroneously
analyzed 	the 	change 	in work hours 	under section 	7.2(b) 	(flexible
work hours) 	of 	the 	expired memorandum of understanding 	(MOU)
between 	the parties 	rather 	than 	section 	7.2(a) 	(alternate
workweek). 	However, 	although both the warning and dismissal
letters 	refer to MOU section 7.2(b), 	CAUSE provides no
justification 	for 	its 	failure 	to bring 	this 	alleged error 	to 	the
Board agent's attention. 	(PERB Reg. 	32635(b); 	PERB regs. 	are
codified at Cal. 	Code Regs., 	tit 8, 	sec. 	31001 et seq.) 	In
addition, 	MOU section 7.2(a) 	provides 	that 	the Department may
establish an 	alternate 	workweek 	for bargaining unit 	employees
pursuant 	to operational 	need. 	CAUSE has presented no 	evidence
that 	the Department 	deviated 	from this 	established policy when 	it
implemented 	the alternate workweek at 	its 	Fullerton office.
22

ORDER
The partial dismissal 	in Case No. 	SA-CE-1222-S 	is hereby
AFFIRMED.
Chairman Caffrey and Member Amador 	joined 	in this 	Decision.
33

STATE OF CALIFORNIA 	GRAY DAVIS, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
1031 18th Street, Room 102
Sacramento, CA 95814-4174
(916) 322-3198
May 	1 0 , 	1999
Linda M. 	Kelly, 	Legal Counsel
California Union of 	Safety Employees
2029 "H" Street
Sacramento, 	CA 	95814
Re: 	California Union of Safety Employees v. 	State of California
(Department of Motor Vehicles)
Unfair Practice Charge No. 	SA-CE-1222-S
PARTIAL DISMISSAL LETTER
Dear Ms. Kelly:
The 	above-referenced unfair practice 	charge was 	filed with the
Public Employment Relations Board 	(PERB or Board) 	on March 12,
1999. 	The charge alleges that the State of California
(Department of Motor Vehicles) 	(DMV) 	violated the Ralph C. 	Dills
Act, Government Code section 3519(a), 	(b) and (c) , when it made
unilateral 	changes 	in policy concerning work schedules 	and
driver's 	license exams conducted during non-daylight hours. 	The
charge 	also alleges 	that 	the Department bypassed the 	exclusive
representative, 	the California Union of Safety Employees 	(CAUSE),
and negotiated directly with employees 	concerning 	these matters.
This 	letter addresses only the allegations concerning changes to
employee work schedules.
I 	indicated to you in my attached letter dated April 	22, 	1999,
that 	certain allegations contained in the charge did not 	state a
prima facie case. 	You were advised that 	if 	there were any
factual 	inaccuracies or additional 	facts which would correct the
deficiencies explained in that 	letter, 	you should amend the
charge. 	You were 	further advised that unless you amended these
allegations 	to 	state a prima 	facie case or withdrew them prior to
April 30, 	1999, 	the allegations would be dismissed. 	On April 30,
1999, 	I received an amended unfair practice charge.
In the original charge, 	CAUSE alleged, 	in part, 	that the
Department made an unlawful unilateral 	change 	in policy when it
established a 	4/10/40 	work week 	for License 	Registration
Examiners 	(LREs) 	and bypassed CAUSE to negotiate the revised work
schedule directly with the LREs. 	I 	indicated in the attached
letter that Article 7.2 of 	the parties' 	expired Memorandum of
Understanding provides 	that 	the 	State may establish 	flexible work
hours on its own initiative or upon request 	of CAUSE or an
employee. 	Accordingly, 	the State did not make an unlawful
unilateral 	change 	in policy or bypass CAUSE to negotiate a new
•
-_-_-_-_- 	--

Partial 	Dismissal 	Letter
SA-CE-1222-S
Page 2
policy or a waiver of an existing policy when it met with the
LREs 	to establish the new work schedule.
The 	amended charge concedes 	that Article 	7.2 	permits 	the
Department to establish flexible work hours. 	However, 	CAUSE
alleges 	for the 	first 	time that 	the Department 	failed to provide
notice 	of 	the decision to establish the 4/10/40 work schedule and
an opportunity to bargain the 	impacts of this decision.
However, 	Article 7.2 	authorizes the State to establish
alternative work schedules without 	a 	further obligation to
bargain. 	There 	is no language 	in this provision which requires
the 	State 	to notify CAUSE prior to establishing the 	4/10/40 work
schedule 	in the Fullerton DMV office.
Alternatively, 	assuming the Department had an obligation to
provide notice and an opportunity to bargain, 	the Board has held
that when an exclusive representative 	"receives actual notice of
a decision, 	the effects of which it believes to be negotiable,
the employer's 	'failure to give 	formal notice 	is of no legal
import.'" 	(Sylvan Union Elementary School District 	(1992) 	PERB
Decision No. 	919 	(Sylvan), 	citing Regents of the University of
California 	(1987) 	PERB Decision No. 	640-H, 	p. 	22.) 	Furthermore,
when considering an effects bargaining allegation, 	the charging
party must 	show that 	it made a request 	to bargain the effects of
the decision. 	(Sylvan.)
The charge alleges that on September 14, 	1998, 	CAUSE Labor
Representative Donna Brady was 	informed by a unit 	member 	from the
Fullerton DMV office 	that 	the LREs had reached an agreement 	with
management 	to establish a 	4/10/40 	work week effective October 	1,
1998. 	Although the charge states that Ms. 	Brady was concerned
about the proposed change, 	there are no facts alleging that CAUSE
made a demand to bargain the effects of the proposed work
schedule change. 	Furthermore, 	on November 12, 	1998, 	CAUSE'S
Chief Legal Counsel, 	Sam McCall, 	sent a letter to DMV Labor .
Relations Officer Bruce Arbuckle 	reminding the Department 	of 	its
obligation to provide notice 	to 	the union of proposed employment
changes. 	However, 	the letter did not contain a demand to bargain
over the effects of the schedule change. 	Thus, 	CAUSE was aware
of the proposed change, 	having received actual notice of the
Department's decision to change 	the LREs work schedule prior to
its 	implementation, 	but CAUSE failed to make a demand to bargain.
Therefore, 	under this theory, 	the allegation fails to state a
prima facie case.
Accordingly, 	based on the discussion above and in the attached
letter, 	the allegations that 	the Department made an unlawful
unilateral 	change 	in policy when it 	established a 4/10/40 work
week for LREs, 	failed provide notice and an opportunity to

Partial 	Dismissal 	Letter
SA-CE-1222-S
Page 3
bargain the 	effects 	of 	the decision to change 	the LREs' 	work
schedule 	and 	bypassed 	CAUSE 	to 	negotiate 	the 	revised work
schedule directly with the 	LREs, 	fail 	to 	state 	a prima 	face 	case
and must 	be 	dismissed.
Right 	to Appeal
Pursuant 	to 	Public 	Employment 	Relations 	Board regulations, 	you
may obtain 	a 	review of 	this 	partial 	dismissal 	of 	the 	charge 	by
filing 	an 	appeal 	to 	the 	Board 	itself 	within 	twenty 	(20) 	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
days 	following 	the date of 	service 	of 	the 	appeal. 	(Cal. 	Code
Regs., 	tit. 	8, 	sec. 	32635(b).)
r
, 	I

Partial Dismissal 	Letter
SA-CE-1222-S
Page 4
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
Robin W. Wesley
Regional 	Attorney
Attachment
cc: 	Carol A. 	McConnell

GRAY DAVIS, Governor
STATE OF CALIFORNIA PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
1031 18th Street, Room 102
Sacramento, CA 95814-4174
1916) 322-3198
April 	22, 	1999
Linda M. 	Kelly
Legal Counsel
California Union of 	Safety Employees
2029 	"H" Street
Sacramento, 	CA 	95814
Re: 	California Union of Safety Employees v. 	State of California
(Department of Motor Vehicles)
Unfair Practice Charge No. 	SA-CE-1222-S
PARTIAL 	WARNING 	LETTER
Dear Ms. Kelly:
The 	above-referenced unfair practice 	charge was 	filed with the
Public Employment Relations Board 	(PERB or Board) 	on March 12,
1999. 	The charge alleges that the State of California
(Department of Motor Vehicles) 	(DMV) 	violated the Ralph C. 	Dills
Act, Government Code section 3519(a), 	(b) 	and (c), when it made
unilateral 	changes 	in policy concerning work schedules and
driver's license exams conducted during non-daylight hours. 	The
charge 	also alleges 	that 	the Department bypassed the exclusive
representative, 	the California Union of Safety Employees 	(CAUSE),
and negotiated directly with employees 	concerning these matters.
This 	letter addresses only the unilateral 	change and bypassing
allegations 	concerning changes 	to employee work schedules.
On March 30, 	1999, 	I telephoned you to discuss the charge.
During our conversation you 	indicated you would provide me with
additional 	information. 	Since 	I have not received any further
information I will address the allegations as presented in the
charge.
On September 14, 	1998, 	CAUSE Labor Representative Donna Brady was
informed by a unit member 	from the 	Fullerton DMV office 	that 	the
License Registration Examiners 	(LREs) 	in that office had reached
an agreement with the office management 	to 	establish a 4/10/40
work week beginning October 1, 	1998. 	The charge alleges that
this work schedule would require the LREs 	to 	conduct pre-dawn
drive 	tests 	in violation of 	department policy prohibiting routine
driver's 	license 	field exams during non-daylight 	hours.
In response to concerns raised by CAUSE, 	on October 13, 	1998, 	the
LREs 	sent a letter to Bruce Arbuckle, 	DMV Labor Relations
Officer. 	In their letter, 	the LREs sought 	to clarify that they
had agreed to conduct 	the pre-dawn exams 	and that 	these pre-dawn
drives were 	limited to one per examiner per day.
-_-_-_-_- 	--

Partial 	Warning Letter
SA-CE-1222-S
Page 2
On November 12, 	1998, 	Sam McCall, 	CAUSE Chief Legal Counsel, 	sent
a letter to Mr. 	Arbuckle reminding the Department of 	its
obligation to provide notice 	to 	the union of proposed employment
changes. 	Mr. 	McCall also reminded the Department of 	its duty to
negotiate only with the union, 	not 	individual employees.
Article 	7.2 of the parties' 	memorandum of understanding
applicable to this dispute, 	dated July 1992 	through June 	1995,
states in pertinent part:
b. 	The State may establish, 	pursuant to an
operational 	need or a request by either a
CAUSE representative or an employee, 	flexible
work hours. 	Unit 	7 employees who are placed
on a flexible work hours 	[sic] 	will comply
with reasonable procedures 	established by
his/her department.
Based upon the facts stated above, 	the allegations that the
Department 	unilaterally established a 	4/10/40 	work schedule 	and
bypassed CAUSE to negotiate 	the 	change 	in the work schedule with
employees, 	fail to state a prima facie case.
To establish a prima facie case of an unlawful unilateral 	change,
the 	charging party must allege 	facts which demonstrate 	that:
(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 bargain. 	(Grant
Joint Union High School District 	(1982) 	PERB Decision No. 	196.)
Furthermore, 	an employer violates the duty to bargain in good
faith when it bypasses 	the exclusive representative 	to negotiate
directly with employees over matters within the 	scope of
representation. 	(Walnut Valley Unified School 	District 	(1981)
PERB Decision No. 	160.) 	However, 	once a policy has been
established by lawful means, 	an employer has the right to take
necessary actions, 	including consulting with employees, 	to
implement 	the policy. 	To establish that 	an employer has
unlawfully bypassed the union, 	the charging party must
demonstrate that 	the employer dealt directly with its 	employees:
(1) 	to create a new policy of general application, 	or 	(2) 	to
obtain a waiver or modification of existing policies applicable
to those employees. 	(Ibid.)
The charge alleges 	in part 	that 	the Department 	in its 	Fullerton
office negotiated directly with the LREs 	to establish an
alternate work schedule 	allowing 	the LREs 	to work a 	4/10/40
schedule. 	By this same conduct, 	the charge alleges that the
Department 	made an unlawful 	unilateral 	change 	in policy by
I

Partial 	Warning Letter
SA-CE-1222-S
Page 3
establishing 	an alternate work schedule without 	providing CAUSE
with notice and an opportunity to bargain.
However, 	Article 	7.2 	authorizes 	the State to establish flexible
work schedules upon request 	of an employee. 	Apparently several
if not 	all 	of 	the LREs in the Fullerton office desired to work
the alternate work schedule. 	Since the MOU permits the State and
the employee to agree to an alternate work schedule, 	there is no
unilateral 	change 	in policy and the Department 	did not bypass
CAUSE 	to negotiate a new policy or a waiver of 	an existing policy
with the LREs. 	Accordingly, 	these allegations 	fail to state a
prima facie case and must be dismissed.
For these reasons the allegations that 	the Department
unilaterally established 	a 	4/10/40 	work schedule 	and bypassed
CAUSE to negotiate the change 	in work schedule with employees, 	as
presently written, 	do 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 April 30, 	1999, 	I
shall 	dismiss 	the above-described allegations 	from your charge.
If you have any questions, 	please call me at 	(916) 	322-3198,
ext 3 05.
Sincerely,
Robin W. Wesley
Regional Attorney