State of California (Department of Parks and Recreation) * * * OVERRULED by multiple decisions, as recognized in State of California (Department of Corrections and Rehabilitation) (2024) PERB Decision No. 2926-S, pp. 16-19 * * * (PERB 0810SA)

* * * OVERRULED 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 	UNION OF 	SAFETY
EMPLOYEES,
Charging 	Party,
v.
STATE OF CALIFORNIA 	(DEPARTMENT OF
PARKS AND RECREATION),
Respondent.
)
)
) 	Case No. 	S-CE-443-S
Request 	for Reconsideration
PERB Decision No. 	810-S
PERB Decision No. 	810a-S
August 	1, 	1990
)
)
)
)
)
)
)
)
Appearances: 	Sam A. 	McCall, 	Jr., Attorney, 	for California Union
of 	Safety Employees; 	Department of 	Personnel Administration by
M. 	Jeffrey Fine, 	Deputy Chief Counsel, 	for State of California
(Department of Parks and Recreation).
Before Hesse, 	Chairperson; 	Craib, 	Shank and Camilli, 	Members.
DECISION
CRAIB, 	Member: 	The Department of Parks and Recreation
(Department) 	requests reconsideration of PERB Decision No. 	810-S,
issued by 	the 	Public 	Employment 	Relations 	Board 	(PERB 	or 	Board)
on June 4, 	1990. 	In that decision, 	the Board affirmed a Board
agent's 	dismissal 	of 	the 	allegation that 	the Department violated
section 3519, 	subdivision 	(a) 	of the Ralph C. 	Dills Act1 by
1The Ralph C. 	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,
subdivisions 	(a) 	and 	(b) 	provides:
It 	shall be unlawful 	for the 	state to:
(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
_____ )

denying 	representation at 	an 	investigatory 	interview. 	However,
the 	Board reversed 	the dismissal 	of 	the 	allegation 	that 	the
denial of representation violated 	section 3519, 	subdivision 	(b),
finding 	that, 	unlike 	the 	allegation of 	interference with 	employee
rights, 	the allegation that the denial of representation
interfered with 	organizational 	rights 	was 	not 	subject 	to 	deferral
to 	arbitration.
DISCUSSION
PERB Regulation 32410, 	subdivision 	(a)2N
states, 	in pertinent
part:
Any party to a decision of 	the Board 	itself
may, 	because of 	extraordinary circumstances,
file 	a 	request 	to 	reconsider the decision
. 	. 	. 	The grounds for requesting
reconsideration are 	limited 	to 	claims 	that
the decision of 	the 	Board 	itself 	contains
prejudicial errors of 	fact, 	or newly
discovered 	evidence 	or 	law which was 	not
previously 	available 	and 	could 	not 	have 	been
discovered with 	the 	exercise 	of 	reasonable
diligence.
In 	its 	request 	for reconsideration, 	the Department puts
forth four arguments: 	(1) 	the California Union of Safety
Employees 	did 	not 	specifically raise 	the 	issue of 	deferral 	of 	the
subdivision 	(b) 	allegation, 	therefore, 	the Department had no
opportunity to 	address 	that 	issue prior to 	the 	Board's 	decision;
employees 	because of 	their exercise 	of 	rights
guaranteed by 	this 	chapter.
(b) 	Deny to employee organizations 	rights
guaranteed 	to 	them by 	this 	chapter.
2PERB 	Regulations 	are 	codified 	at 	California 	Administrative
Code, 	title 8, 	section 31001 	et seq.
2

(2) 	the 	Board's decision is 	inconsistent with the 	language of
section 3514.5, 	subdivision 	(a)(2), which states that the Board
shall 	not 	"issue 	a 	complaint 	against 	conduct also prohibited by
the provisions of the agreement 	. 	. 	. 	." 	Since the same conduct
alleged to have 	constituted the 	section 	3519, 	subdivision 	(b)
violation also was 	the basis 	for the 	subdivision 	(a) 	allegation
that was 	deferred to arbitration, 	the Department 	claims 	that the
Board has 	improperly 	issued 	a 	complaint 	against 	conduct 	also
prohibited by the contract; 	(3) 	the present case is
distinguishable 	from 	State 	of 	California 	(California 	Department
of Forestry and Fire Protection) 	(1989) 	PERB Decision No. 	734-S
because, 	in that case, 	the alleged unlawful conduct was
principally directed at the employee organization, 	while, 	in the
present 	case, 	the 	conduct was principally directed at 	an
employee; 	and 	(4) 	the Board erred in ordering that a complaint
issue because 	there was 	no determination that 	the 	allegations
were 	sufficient 	to 	state 	a prima 	facie violation.
The 	Department's 	request 	for 	reconsideration does 	not 	claim
that 	the 	Board's 	decision contains 	prejudicial 	errors 	of 	fact,
nor does 	it offer newly discovered evidence or 	law. 	Rather, 	it
asserts 	that the decision contains 	various 	errors 	of 	law.
Therefore, 	the request 	is denied for failure to meet the
requirements 	of Regulation 32410.3
3With regard 	to 	the 	Department's 	argument 	that 	the 	Board
failed to determine 	if a prima 	facie violation was 	stated, 	we
note that 	such determination, 	though not express, 	was 	implicit 	in
the 	Board's 	adoption of 	the 	Board agent's 	rendition of 	the 	facts
and its 	order that a complaint 	issue. 	Nevertheless, 	to avoid any
33

ORDER
The request 	for reconsideration of PERB Decision No. 	810-S
is 	hereby DENIED.
Members 	Shank and Camilli 	joined 	in this 	Decision.
Chairperson Hesse's dissent begins 	on p. 	5.
potential 	for confusion, 	we now expressly hold that, 	assuming the
facts 	alleged are true, 	Ranger Robert Murphy could reasonably
have believed that discipline might occur, 	so as 	to trigger
representational 	rights 	at 	the 	investigatory 	interview on 	or
about October 	12, 	1989. 	(See, 	e.g., 	Redwoods Community College
District 	(1983) 	PERB Decision No. 	293, 	affd. 	in part in Redwoods
Community College 	District v. 	Public 	Employment 	Relations 	Board
(1984) 	159 Cal.App.3d 617.)
4

conduct is 	alleged to violate 	section 3519(a) 	and 	(b) 	of the
Dills Act. 	As 	this 	conduct 	is 	arguably prohibited by the
parties' 	collective bargaining agreement, which has 	a 	grievance
procedure 	culminating 	in binding arbitration, 	the Board does 	not
have 	jurisdiction to 	issue a complaint. 	The 	fact that the 	same
conduct may constitute a violation of 	section 3519(b) 	of the
Dills Act, 	in addition to section 3519(a), 	cannot be used to
defeat the 	jurisdictional bar of 	section 3514.5(a)(2). 	(See Lake
Elsinore School District, 	supra, 	PERB Decision No. 	646.) 	By
issuing a 	complaint alleging a violation of 	section 3519(b), 	the
Board 	is 	issuing 	a 	complaint 	against 	conduct prohibited by 	the
collective bargaining 	agreement.1 	Such a 	result 	is 	contrary 	to
the mandatory 	language of 	section 3514.5(a)(2) 	of the Dills Act
1 Article VI, 	section 6.2(a) 	of the parties' 	collective
bargaining agreement defines 	grievance as:
[A] 	dispute of one or more employees, 	or a
dispute between the 	State 	and CAUSE
[California 	Union of 	Safety Employees]
involving the interpretation, 	application, 	or
enforcement of 	the express 	terms 	of this
Contract.
Under this provision, 	the Association can be a grievant. 	Even if
the 	collective bargaining agreement were 	silent 	on this 	issue,
the 	Board has 	held 	that the 	exclusive 	representative 	has 	the
right 	to 	file a grievance 	in its 	own name. 	(South Bay Union
School District 	(1990) 	PERB Decision No. 	791.) 	This right
appears 	to be based on EERA 	section 	3543.1(a). 	As 	section 	3515.5
of the Dills Act contains 	identical 	language, 	this holding is
applicable to the present case. 	Accordingly, 	the allegation that
the 	Department's 	denial of 	representation to 	an employee 	at 	an
investigatory 	interview 	interfered with 	the 	employee
organization's 	rights 	is 	also prohibited by the parties'
collective 	agreement.
6
---------------- 	- 	-
•
6

Hesse, 	Chairperson, 	dissenting: 	I would grant the
Department of Parks 	and Recreation's 	(Department) 	request 	for
reconsideration. 	Further, 	I would find the Public 	Employment
Relations 	Board 	(Board) 	agent properly dismissed 	and deferred 	to
arbitration the 	allegations 	that 	the 	Department 	violated 	section
3519(a) 	and 	(b) 	of the Ralph C. 	Dills Act 	(Dills Act) 	by denying
representation at 	an 	investigatory 	interview.
Section 3514.5(a)(2) 	of the Dills Act states, 	in pertinent
part:
Any employee, 	employee organization, 	or
employer 	shall 	have the 	right 	to 	file 	an
unfair practice 	charge, 	except that the board
shall not 	. 	. 	. 	issue a complaint against
conduct 	also prohibited by 	the provisions 	of
the 	agreement 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,
the 	Board held that 	section 	3541.5(a) 	of 	the Educational
Employment Relations Act 	(EERA), 	which contains 	language
identical 	to 	section 3514.5(a) 	of the Dills Act, 	established a
jurisdictional 	rule 	requiring an unfair practice 	charge 	be
dismissed and deferred if: 	(1) 	the grievance procedure of 	the
parties' 	collective bargaining agreement culminates 	in binding
arbitration; 	and 	(2) 	the conduct alleged in the unfair practice
charge 	is 	prohibited by the parties' 	collective bargaining
agreement.
In the present case, 	the alleged conduct 	is 	the Department's
denial 	of 	representation at 	an 	investigatory 	interview. 	This
5

and 	contrary 	to 	the Board's 	holding 	in Lake Elsinore 	School
District, 	supra, 	PERB Decision No. 	646.
Finally, 	the majority has 	failed to distinguish the present
case 	from the 	Board's 	decision 	in State 	of California 	(California
Department of 	Forestry and Fire Protection) 	(1989) 	PERB Decision
No. 	734-S. 	In State of California, 	the Board was 	confronted with
two 	alleged 	employer 	statements 	which 	allegedly 	interfered with
the 	employees' 	rights 	and employee organization's 	rights. 	The
Board 	found 	one 	of 	the alleged 	statements 	was 	directed 	toward 	the
employee organization and, 	therefore, 	stated a prima 	facie case
of 	interference with the 	employee organization's 	rights 	in
violation of 	section 	3519(b) 	of the Dills Act. 	The Board did not
find 	that 	this 	alleged 	statement 	also 	interfered with 	the
employees' 	rights. 	Rather, 	the alleged threat was directed
against the employee organization. 	Thus, 	unlike the present
case, 	the 	Board did not 	find the 	same 	conduct was prohibited by
the parties' 	collective bargaining agreement 	and also 	constituted
a prima 	facie violation of 	the Dills Act.
For these reasons, 	I would grant the Department's 	request
for 	reconsideration and reverse 	the 	majority's 	decision 	in State
of California 	(Department of Parks 	and Recreation) 	(1990) 	PERB
Decision No. 	810-S.
7