State of California (California Department of Forestry and Fire Protection) * * * OVERRULED IN PART by multiple decisions, as recognized in State of California (Department of Corrections and Rehabilitation) (2024) PERB Decision No. 2926-S, pp. 16-19 * * * (PERB 0734S)

* * * OVERRULED IN PART by multiple decisions, as recognized in State of
California (Department of Corrections and Rehabilitation) (2024) PERB
Decision No. 2926-S, pp. 16-19 * * *
STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA DEPARTMENT OF 	FORESTRY
EMPLOYEES ASSOCIATION,
Charging 	Party,
v.
STATE OF 	CALIFORNIA 	(CALIFORNIA
DEPARTMENT OF 	FORESTRY AND 	FIRE
PROTECTION),
Respondent.
)
)
)
) 	Case No. 	S-CE-392-S
PERB Decision No. 	734-S
May 	3, 	1989
)
)
)
)
)
)
)
)
Appearances: 	Carroll, 	Burdick & McDonough by Ronald Yank,
Attorney, 	for the California 	Department 	of 	Forestry Employees
Association; 	Department of 	Personnel Administration by Roy 	J.
Chastain, 	Labor Relations Counsel, 	for the State of California
(California Department of 	Forestry and Fire Protection).
Before Hesse, 	Chairperson; 	Porter, 	Craib, 	Shank and Camilli,
Members.
DECISION
This 	case 	is 	before 	the Public 	Employment 	Relations 	Board
(Board) 	on appeal by the 	charging party of the Board 	agent's
dismissal, 	attached hereto. 	The charging party challenges 	the
dismissal 	of 	that portion of 	its 	charge 	that alleges 	that 	the
respondent violated 	section 3519(b) 	of the Ralph C. 	Dills Act.
We 	have 	reviewed 	the 	dismissal 	and 	find 	that 	the unfair practice
charge alleging a violation of 	section 	3519(a) 	states 	a prima
facie 	case that respondent 	interfered with employees' 	rights, 	and
we 	agree 	that 	this 	allegation must be deferred to 	arbitration
under Lake Elsinore School District 	(1987) 	PERB Decision No. 	646.
__)

With 	regard to 	the 	allegation that 	respondent 	interfered
with the rights 	of the employee organization, 	we 	find that the
alleged 	statement wherein 	the 	respondent 	threatened 	that 	there
would not be a 	contract 	states 	a prima 	facie case that 	the
respondent 	interfered with 	the 	rights 	of 	the 	employee
organization. 	Finally, 	we 	summarily deny respondent's 	request
that 	it be awarded costs 	and 	fees.
ORDER
For the reasons 	stated above, 	the Board AFFIRMS 	the Board
agent's 	dismissal 	of 	the 	allegation that 	respondent 	interfered
with the 	employees' 	rights. 	The Board hereby REVERSES 	the Board
agent's 	dismissal 	of 	the 	allegation that 	the respondent
interfered with the rights 	of the employee organization, 	and
REMANDS 	the 	Board agent's 	dismissal 	of 	this 	allegation to 	the
General Counsel. 	The Board hereby ORDERS 	the General 	Counsel 	to
issue a 	complaint 	alleging a violation of 	section 	3519(b).
By 	the BOARD
1We 	note 	that 	the 	charging party alleged 	the 	minimum
required to 	state a prima 	facie case. 	In future cases, 	the
charging party runs 	the risk of 	a dismissal 	should 	it 	fail 	to
allege the necessary 	facts.
22

STATE OF CALIFORNIA 	GEORGE DEUKMEJIAN, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
1031 18th Street, Room 102
Sacramento, CA 	95814-4174
916) 322-3198
DEAD (
November 	17, 	1988
Ronald 	Yank
Carroll, 	Burdick & McDonough
One Ecker 	Place, 	Suite 400
San Francisco, 	CA 	94105
Re: 	California 	Department 	of 	Forestry Employees 	Association v,
State of California. 	Case No. 	S-CE-392-S
Dear Mr. 	Yank:
On July 25, 	1988, 	the California Department 	of 	Forestry
Employees 	Association 	(CDFEA) 	filed 	an unfair 	practice 	charge
against 	the 	State 	of 	California 	alleging 	violations 	of 	the
Dills Act, 	sections 3519(a), 	(b) 	and (d). 	Specifically, 	the
charge 	alleges 	that 	a 	management 	representative made 	threats
against 	employees 	and 	the 	union 	for 	engaging 	in 	protected
activity.
I 	indicated 	to you 	in my 	attached 	letter 	dated 	November 	8,
1988, 	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 	that would 	correct 	the
deficiencies 	explained 	in 	that 	letter, 	you 	should 	amend 	the
charge 	accordingly. 	You were 	further 	advised 	that 	unless 	you
amended 	the charge 	to 	state 	a 	prima 	facie case, 	or withdrew 	it
prior 	to November 	15, 	1988, 	the charge would be dismissed.
I 	have 	not 	received either 	a 	request 	for withdrawal 	or 	an
amended 	charge. 	I 	am therefore dismissing 	the 	charge 	based 	on
the 	facts 	and 	reasons 	contained 	in my November 	8, 	1988, 	letter.
Right 	to Appeal
Pursuant 	to 	Public Employment 	Relations 	Board 	regulations, 	you
may obtain 	a 	review of 	this 	dismissal 	of 	the 	charge 	by 	filing
an 	appeal 	to 	the 	Board 	itself within 	twenty 	(20) 	calendar 	days
after 	service 	of 	this 	dismissal 	(California 	Administrative
Code, 	title 8, 	section 32635(a)). 	To be timely filed, 	the
original 	and 	five 	copies 	of 	such 	appeal 	must 	be 	actually
received 	by 	the 	Board 	itself 	before 	the 	close 	of 	business
(5:00 	p.m.) 	or 	sent 	by telegraph, 	certified or Express United
-- --------

States 	mail 	postmarked 	no 	later 	than 	the 	last 	date 	set 	for
filing 	(California Administrative Code, 	title 	8,
section 	32135). 	Code of 	Civil 	Procedure 	section 	1013 	shall
apply. 	The Board's 	address 	is:
Ronald 	Yank
November 17, 	1988
Page 	2
Public 	Employment 	Relations 	Board
1031 	18th 	Street
Sacramento, 	CA 95814
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
calendar 	days 	following 	the 	date 	of 	service 	of 	the 	appeal
(California Administrative Code, 	title 8, 	section 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 	California
Administrative Code, 	title 	8, 	section 32140 	for 	the 	required
contents 	and 	a 	sample 	form.) 	The document will 	be 	considered
properly 	"served" 	when 	personally delivered 	or 	deposited 	in 	the
first-class 	mail 	postage 	paid 	and 	properly 	addressed.
Extension 	of 	Time
A 	request 	for 	an extension 	of 	time 	in which 	to 	file 	a 	document
with 	the 	Board 	itself 	must 	be 	in writing 	and 	filed with 	the
Board 	at 	the 	previously noted 	address. 	A 	request 	for 	an
extension must 	be 	filed 	at 	least 	three 	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 	(California Administrative Code, 	title 8, 	section 32132).

Ronald Yank
November 17, 	1988
Page 3
Final Date
If no appeal is filed within the specified time limits, 	the
dismissal will become final when the time 	limits have expired,
Sincerely,
CHRISTINE A. 	BOLOGNA
General 	Counsel
By Bernard 	McMonigle
Staff 	Attorney
Attachment
cc: 	Jeffrey Fine
5788d

STATE OF CALIFORNIA 	GEORGE 	DEUKMEJIAN
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
1031 18th Street, Room 102
Sacramento, CA 	95814-4174
(916) 322-3198
November 9, 	1988
Ronald 	Yank
Carroll, 	Burdick & McDonough
One Ecker Place, 	Suite 400
Ban Francisco, 	CA 	94105
Re: 	California 	Department 	of 	Forestry Employees Association v
State of California. 	Case No. 	S-CE-392-S
Dear Mr. Yank:
Our 	letter 	of 	November 	8 	incorrectly 	states 	that your 	charge
will 	be 	dismissed without 	leave 	to 	amend 	if we do 	not 	receive
an 	amended charge 	or withdrawal 	from you by November 	11. 	The
date 	for dismissal 	if 	the 	above 	is 	not 	received 	should be
November 	15. 	I 	apologize for 	any inconvenience.
Sincerely,
Bernard 	McMonigle
Staff 	Attorney
5744d
-
----------

STATE OF CALIFORNIA 	GEORGE DEUKMEJIAN, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
1031 18th Street, Room 102
Sacramento, CA 	95814-4174
(916) 322-3198
November 8, 	1988
Ronald Yank
Carroll, Burdick 	& McDonough
One Ecker Place, 	Suite 400
San Francisco, 	CA 	94105
Re: 	WARNING LETTER. 	California Department of Forestry
Employees Association v. 	State of California. 	Case
No. 	S-CE-392-S
Dear Mr. Yank:
On July 25, 	1988, 	the California Department of Forestry
Employees Association 	(CDFEA) 	filed an unfair practice charge
against 	the State of California 	alleging violations of 	the
Dills Act, sections 3519(a), 	(b) and (d). 	Specifically, the
charge 	alleges 	that 	a management 	representative made threats
against employees 	and the union for 	engaging 	in protected
activity.
Investigation of 	this charge revealed the following. 	The
Mid-Valley Fire District had a contract with the California
Department of 	Forestry and Fire Protection 	(CDF) 	to provide
fire protection for the district. 	Local union representatives
made public criticisms 	of 	local CDF management 	including
criticisms 	to the Mid-Valley Fire District Board. 	Among 	the
policies criticized was 	a 	recommendation to the Mid-Valley
Board by local CDF management that the jurisdiction of 	two 	fire
stations 	in the district be turned over to the City of Fresno.
According to the union, 	that particular proposal could have
meant 	a 	shift 	in firefighting 	responsibilities 	from state
employees to City of Fresno firefighters.
On May 11, 	1988, management representative Brian Weatherford, 	a
Ranger 	III employed by CDF, 	allegedly made a statement about
how employees 	should be asked who they work for, 	and if they
say Mid-Valley instead of CDF, 	they should be transferred.
According to the union, Weatherford also said that, 	"if the
union 	and 	that 	board don't quit 	screwing 	around with that
contract, 	then there won't be any more contract 	and CDF will
see to it."
At the time of 	these events, 	CDF and CDFEA were signatory to 	a
collective bargaining 	agreement. 	That 	agreement provides 	in
section 6.06, 	Employee Rights, 	that 	"each employee retains all
rights conferred by section 3515, 	et seq. 	of the State
Employer-Employee Relations Act." 	The 	agreement's grievance
---~---_-_-

and binding 	arbitration procedure, 	also contained 	in Article 	6,
defines a grievance as 	"a dispute of one or more employees, 	or
a dispute between the State 	and CAUSE 	involving 	the
interpretation, 	application, 	or enforcement at the express time
of this Agreement."
Ronald Yank
November 8, 	1988
Page 2
Section 3514.5(a)(2) of the Dills Act states, 	in pertinent
part, that PERB,
shall not . 	. 	. 	issue a complaint against
conduct 	also prohibited by the provisions 	of
the . 	. 	. 	[collective bargaining agreement
in effect] 	between the parties until the
grievance machinery of the agreement, 	if it
exists and covers the matter at issue, 	has
been exhausted 	either 	by settlement 	or
binding 	arbitration.
In Lake Elsinore School District 	(1987) 	PERB Decision No. 	646,
PERB held that 	section 3541.5(a) 	of 	the Educational Employment
Relations Act, 	which contains 	language identical to
Section 3514.5(a) 	of the Dills Act, 	established a jurisdictional
rule 	requiring 	that a charge be dismissed and deferred 	if: 	(1)
the grievance machinery of 	the agreement covers 	the matter 	at
issue and culminates in binding arbitration; 	and, 	(2) 	the conduct
complained of 	in the unfair practice charge 	is prohibited by the
provisions of the agreement between the parties. 	PERB Rule
32620(b)(5) 	(California Administrative Code, 	title 8,
section 32620(b)(5)) 	also requires the investigating board agent
to dismiss 	a charge where the allegations 	are properly deferred
to binding arbitration.
These standards are met with respect to this case. 	First, 	the
grievance machinery of 	the agreement/MOU covers 	the dispute
raised by the unfair practice charge and culminates 	in binding
arbitration. 	Second, 	the conduct complained of 	in this charge,
that management 	interfered with the 	rights of 	both CDFEA and
CDFEA members by way of 	threats, 	is 	arguably prohibited by
section 	6.06 	of 	the collective bargaining 	agreement. 	The 	first
threat 	that employees would be transferred out of 	the
geographical 	area 	for expressing 	their opinions 	seems 	to be
clearly covered by section 6.06, 	which states, 	"each employee
retains 	all 	rights conferred by section 3515 et seq. 	of the State
Employer-Employee Relations Act."
The 	second threat 	that 	"if 	the union and the board don't quit
screwing 	around with the contract, 	there won't be any more

Ronald 	Yank
November 	8, 	1988
Page 3
contract," 	may 	also 	interfere with employee 	rights. 	Threats 	to
employee 	organizations 	have 	been held 	to 	be 	interference with
employee 	rights. 	Santa Monica Unified Union 	School 	District
(1979) 	PERB Decision No. 	103. 	CDFEA contends 	that 	the 	second
threat 	also 	interferes 	with the 	employee 	organization's 	rights
and 	that 	those 	rights 	are not 	guaranteed under 	the 	contract 	and
therefore 	are 	not 	subject 	to 	the grievance 	and 	arbitration
procedure. 	Thus, 	CDFEA contends that there 	is 	a 	separate
violation of 	Government 	Code 	section 3519(b) 	based 	on 	the 	same
conduct.
This 	theory 	is without merit 	for 	the 	following 	reasons. 	First,
Charging 	Party 	has 	not 	established 	that 	its 	rights 	were
threatened 	independently of 	the 	threat 	against 	employee 	rights.
Novato Unified School District 	(1982) 	PERB Decision No. 	210;
Gonazales 	Union High School 	District 	(1984) 	PERB Decision
No. 	410. 	Charging 	Party states 	that 	"[t]he threat 	could
materialize 	into 	acts 	that 	do 	not 	directly 	run 	against
individuals, 	but 	rather 	against 	the Association. 	. . . " 	Such 	an
assertion 	is 	speculative 	and 	is not 	a 	statement 	of 	fact. 	As
explained, 	the 	threat which 	is 	alleged 	to have been made
interferes with employee 	rights. 	Second, 	this case 	involves 	a
substantial 	question of 	whether 	section 	6.06 	of 	the 	agreement
between the parties 	has 	been violated. 	It 	is 	clear 	that
interference with employee 	rights 	is 	at 	the center 	of 	this
dispute 	and 	resolution of 	this 	issue may settle 	this matter 	in 	a
way compatible with the Act. 	Accordingly, 	this 	charge must 	be
deferred 	to 	arbitration 	and will 	be dismissed. 	Such dismissal 	is
without 	prejudice 	to 	the Charging 	Party's 	right, 	after
arbitration, 	to 	seek a 	repugnancy review by PERB of 	the
arbitrator's 	decision under 	the Dry Creek criteria. 	See 	PERB
-
Regulation 	32661 	(California Administrative Code, 	title 	8,
section 32661); 	Los Angeles Unified School District 	(1982) 	PERB
Decision No. 	218; 	Dry Creek Joint Elementary School 	District
(1980) 	PERB Order No. 	Ad-81a.
If 	you 	feel 	that 	there 	are 	any factual 	inaccuracies 	in this
letter 	or 	any 	additional 	facts which would 	require 	a 	different
conclusion 	than 	the 	one explained 	above, 	please 	amend 	the 	charge
accordingly. 	This 	amended charge 	should be prepared 	on 	a
standard 	PERB 	unfair 	practice 	charge 	form 	clearly 	labeled 	First
Amended Charge, 	contain 	all 	the 	facts 	and 	allegations 	you wish to
-make, 	and 	be 	signed under 	penalty of 	perjury by the 	charging
party. 	The 	amended 	charge must 	be 	served 	on 	the 	respondent 	and
the original 	proof 	of 	service must 	be 	filed with PERB. 	If 	I 	do
not 	receive 	an 	amended 	charge 	or withdrawal 	from you 	before

November 11, 	1988, 	I shall dismiss your charge without leave to
amend. 	If you have any questions on how to proceed, 	please call
me at (916) 322-3198.
Ronald 	Yank
November 8, 	1988
Page 4
Sincerely,
Bernard 	McMonigle
Staff Attorney
5677d