State of California, Department of Personnel Administration (Professional Engineers in California Government) (PERB 0900S)

STATE 	OP 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
STATE 	OF 	CALIFORNIA 	(DEPARTMENT OF
PERSONNEL ADMINISTRATION),
Charging 	Party,
v.
PROFESSIONAL 	ENGINEERS 	IN
CALIFORNIA 	GOVERNMENT,
Respondent.
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)
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) 	Case No. 	S-CO-127-S
PERB Decision No. 	900-S
September 	13, 	1991
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Appearance: 	M. 	Jeffrey Fine, 	Deputy Chief Counsel, 	for State of
California 	(Department of Personnel Administration).
Before Shank, 	Camilli and Carlyle, 	Members.
DECISION
CAMILLI, 	Member: 	This case 	is before the Public Employment
Relations 	Board 	(PERB or Board) 	on appeal by the State of
California 	(Department of Personnel Administration) 	(DPA) 	of a
PERB regional 	attorney's 	dismissal 	(attached) 	of 	its 	charge
alleging 	the 	Professional 	Engineers 	in California 	Government
(PECG) 	violated section 3519.5(c) 	of the Ralph C. 	Dills Act
(Act).1
1Ralph 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 	3519.5
provides, 	in pertinent part:
It 	shall 	be unlawful 	for an 	employee
organization to:
(c) 	Refuse or fail 	to meet and confer in
good 	faith with 	a 	state 	agency 	employer 	of
__ )

any of the employees 	of which 	it 	is 	the
recognized 	employee 	organization.
The 	Board 	notes 	that 	an amended 	charge was 	filed 	in this
case which alleged violations of section 3519(3), 	(b) 	and 	(c) 	of
the Act. 	As 	that 	section concerns 	unlawful 	actions 	engaged 	in by
the 	state, 	it appears 	that DPA may have meant to allege
violations of 3519.5(a), 	(b) 	and 	(c) 	of the Act. 	Because the
Board affirms 	the 	regional 	attorney's 	dismissal 	of 	an alleged
violation of 	section 3519.5(c), 	alleged violations of 	subsections
(a) 	and 	(b) 	of that 	section would also be dismissed.
DPA 	alleged 	that 	PECG 	violated 	its 	duty to 	bargain 	in good
faith 	by 	insisting 	on negotiating 	and 	reaching 	agreement 	on
ground 	rules/released 	time 	before 	discussing proposals 	on 	other
issues. 	In the warning and dismissal 	letters, 	the regional
attorney 	found 	that 	the 	charge 	failed 	to 	state 	a prima 	facie
violation of 	the 	duty to 	bargain 	in good 	faith based 	on 	either 	a
totality of the 	circumstances 	or a per 	se test. 	(Stockton
Unified School 	District 	(1980) 	PERB Decision No. 	143.)
DPA has 	appealed the dismissal, 	contending that PECG's
conduct 	constitutes 	a per 	se violation of 	the duty 	to bargain 	in
good faith. 	In addition, 	DPA claims 	that the regional 	attorney's
determination that 	the 	allegations 	fail 	to 	state 	a prima 	facie
case under the totality 	of 	the 	circumstances 	test was 	flawed.
The 	Board has 	reviewed the dismissal 	and, 	finding 	it to be
free 	from prejudicial error, 	adopts 	it as 	the decision of 	the
Board 	itself, 	consistent with the 	following discussion.
DISCUSSION
Although 	the 	Board 	affirms 	the 	regional 	attorney's 	analysis
concerning the totality of 	the 	circumstances 	test, 	the Board
22

finds 	it 	necessary to 	further 	address 	the 	issue 	of 	an alleged per
se violation of 	the duty to bargain 	in good 	faith.
The 	regional 	attorney 	cites 	Stockton Unified 	School 	District
(1980) 	PERB Decision No. 	143 	for the proposition that the
conditioning 	of 	negotiation of 	substantive 	issues 	on agreement 	on
ground rules 	(in this case, 	released time) 	is not a per se
violation of 	the duty to bargain 	in good 	faith. 	(Warning 	letter,
p. 	4.) 	In Stockton, 	supra. 	the Board found it unnecessary to
determine whether 	the district's 	conduct 	of 	conditioning
negotiation of 	substantive 	issues 	on agreement 	on ground 	rules
constituted a per 	se violation of 	the duty 	to bargain 	in good
faith. 	The 	Board determined that 	the district's 	conduct was 	part
of a 	total 	course of conduct which, 	taken together, 	established a
violation of the duty to bargain in good 	faith. 	(Id. 	at p. 	24.)
Based upon the above, 	the Board 	finds 	that the determination that
PECG's 	conduct does 	not 	constitute 	a per 	se violation requires
further analysis.
The 	facts 	of 	this 	case potentially 	implicate 	two 	separate
per 	se violation theories. 	An absolute refusal 	to meet and
negotiate 	on demand 	of another party may 	constitute 	a per 	se
violation. 	(Sierra 	Joint Community College 	District 	(1981) 	PERB
Decision No. 	179.) 	If a 	subject is outside the 	scope of
representation, 	a party may refuse to negotiate. 	(Healdsburg
Union High School District 	(1980) 	PERB Decision No. 	132, 	p. 	8.)
However, 	the 	issue of released time 	is within the 	scope of
33

representation and 	is 	a mandatory 	subject 	of bargaining.
(Gonzales 	Union High School 	District 	(1985) 	PERB Decision
No. 	480, 	p. 	45; 	Compton Community College District 	(1989) 	PERB
Decision No. 	728, 	p. 	56.) 	The Board has 	found that the
district's 	categorical 	refusal 	to 	negotiate 	released time 	is 	a
violation of 	the 	Educational 	Employment 	Relations 	Act 	section
3543.5(c) 	because released time 	is 	a 	subject within the 	scope of
representation. 	(Sierra Joint Community College District, 	supra.
PERB Decision No. 	179.)
Based upon the above, 	it 	is 	clear that because released time
is 	a 	subject within the 	scope of 	representation, 	neither party
may refuse to negotiate this 	issue. 	However, 	there 	is no
allegation that 	PECG refused to 	negotiate 	this 	issue. 	Because
there 	is 	no 	allegation that 	PECG refused to bargain the 	issue 	of
released time, 	the charge 	fails 	to 	state a prima 	facie 	case 	that
PECG 	failed to bargain 	in good 	faith under this 	per 	se theory.
The 	Board has 	also 	found 	a per 	se violation of 	the duty 	to
negotiate where a party 	insists 	to 	impasse 	on a 	non-mandatory
subject of bargaining as 	a 	condition of 	settlement of mandatory
subjects 	of bargaining. 	(Lake Elsinore 	School 	District 	(1986)
PERB Decision No. 	603.) 	In the present case, 	DPA alleges that
PECG 	insisted 	on 	negotiating 	and 	reaching 	agreement 	regarding 	the
issue 	of 	ground rules/released time 	before 	it would 	negotiate
substantive issues. 	The issue of released time, 	however, 	is a
mandatory subject of 	bargaining. 	(Los 	Rios 	Community College
District 	(Barth) 	(1991) 	PERB Decision No. 	867, 	warning letter,
44

p. 	2; 	Gonzales Union High School District 	(1985) 	PERB Decision
No. 	480, 	p. 	45.) 	Because the issue of released time is a
mandatory 	subject of bargaining, 	PECG's 	insistence upon
negotiations 	on that 	issue does 	not 	constitute 	a per 	se violation
of 	the duty to bargain 	in good 	faith.
Based upon all 	of the above, 	the Board 	finds 	that the 	charge
fails 	to 	state a prima 	facie 	case of a 	failure 	to bargain in good
faith under a per 	se theory.
ORDER
The unfair practice 	charge 	in Case No. 	S-CO-127-S 	is 	hereby
DISMISSED WITHOUT LEAVE 	TO AMEND.
Members 	Shank and Carlyle 	joined 	in this 	Decision.
5

STATE Of CALIFORNIA 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
v~
Headquarters Office
1031 18th Street
Sacramento, CA 95814-4174
(916) 322-3088
~
~
July 	9, 	1991
M. 	Jeffrey Fine
Deputy 	Chief 	Counsel
Department 	of 	Personnel 	Administration
Legal 	Division
1515 "S" Street
North Building, 	Suite 	400
Sacramento, 	CA 	94244
Re: 	State 	of 	California 	(Department 	of 	Personnel Administration)
v. 	Professional Engineers 	in California Government
Unfair 	Practice 	Charge 	No. 	S-CO-127-S
DISMISSAL 	LETTER
Dear Mr. 	Fine:
On June 	4, 	1991, 	you 	filed a 	charge 	in which you alleged that the
Professional 	Engineers 	in California Government 	(PECG) 	has
violated 	section 	3519.5(c) 	of 	the Government Code 	(the 	Dills
Act). 	Specifically, 	you allege that PECG has 	failed to bargain
in good 	faith 	by 	refusing 	to 	bargain 	substantive 	issues 	until
agreement 	has 	been 	reached 	on ground rules 	in violation of 	the
Dills Act.
I 	indicated to you 	in my attached 	letter dated June 	26, 	1991,
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 July 	5, 	1991, 	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 June 	26, 	1991 	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 Code of Regulations, 	title
~
...

Dismissal 	Letter to M. 	Jeffrey Fine
Page 	2
July 9, 	1991
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 	Code 	of
Regulations, 	title 8, 	section 32135). 	Code of Civil Procedure
section 	1013 	shall 	apply. 	The Board's address 	is:
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 	Code 	of
Regulations, 	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 Code 	of 	Regulations,
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 	Code 	of
Regulations, 	title 8, 	section 32132).

Dismissal 	Letter to M. 	Jeffrey Fine
Page 3
July 9, 	1991
Final 	Date
If no appeal 	is 	filed within the 	specified time limits, 	the
dismissal will 	become 	final when the 	time 	limits 	have 	expired
Sincerely,
JOHN W. 	SPITTLER
General 	Counsel
By Michael E. 	Gash
Regional 	Attorney
Attachment

STATE OF CALIFORNIA 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
PERD
Headquarters Office
1 0 3 1 ' 8 * Street
Sacramento, CA 	95814-4174
(916) 322-3088
June 26, 	1991
M. 	Jeffrey Fine
Deputy 	Chief 	Counsel
Department 	of 	Personnel Administration
Legal 	Division
1515 "S" Street
North Building, 	Suite 400
Sacramento, 	CA 	94244
Re: 	State 	of California 	(Department 	of 	Personnel 	Administration)
v. 	Professional 	Engineers 	in California 	Government
Unfair Practice Charge No. 	S-CO-127-S
WARNING 	LETTER
Dear Mr. 	Fine:
On June 	4, 	1991, 	you 	filed a 	charge 	in which you alleged that 	the
Professional 	Engineers 	in California 	Government 	(PECG) 	has
violated 	section 	3519.5(c) 	of 	the Government Code 	(the 	Dills
Act). 	Specifically, 	you allege that PECG has 	failed to bargain
in 	good 	faith by refusing 	to 	bargain 	substantive 	issues 	until
agreement 	has 	been reached 	on ground 	rules 	in violation 	of 	the
Dills Act.
On June 	19, 	1991, 	you 	filed a 	First Amended Charge 	alleging that
PECG has 	failed 	to bargain 	in good 	faith 	by 	conditioning
substantive discussions 	on a resolution of 	ground rules. 	My
investigation revealed 	the 	following 	facts.
PECG 	is 	the 	exclusive negotiating 	agent 	for 	employees 	in
Bargaining 	Unit 	9. 	PECG and 	the 	State 	of 	California 	(Department
of 	Personnel Administration) 	(hereinafter State or DPA) 	are
currently parties 	to 	a 	collective 	bargaining 	agreement which
expires on June 30, 	1991. 	On May 20, 	1991, 	PECG and the State met
to 	negotiate 	ground rules 	for a 	successor 	agreement. 	The parties
did 	not 	reach agreement 	on ground rules.
The 	State 	negotiator 	offered 	to 	meet with 	PECG 	in the 	absence 	of
ground rules on May 28, 	1991 	through June 	1, 	1991. 	The State
negotiator did not offer State paid release time. 	However, 	the
State 	negotiator 	offered 	PECG 	representatives 	union 	leave,
vacation 	leave 	or CTO 	for 	bargaining during 	the 	normal 	workday,
or 	to 	begin bargaining at 	5:30 	p.m. 	each 	day 	beginning 	Tuesday,

Letter to M. 	Jeffrey Fine
Page 	2
June 26, 	1991
May 28, 	1991 through Friday, 	May 31, 	1991 and on Saturday, 	June
1, 	1991, 	beginning at 	10:00 a.m. 	with no 	stated ending time.
PECG's 	negotiator refused to meet between May 28, 	1991 	through
May 31, 	1991. 	However, 	by letter, 	he requested that the parties
meet on June 	1, 	1991, 	to conclude negotiations on ground rules.
PECG and the State met on June 	1, 	1991. 	During this 	meeting 	the
State 	negotiator 	stated that 	if 	the parties were unable 	to 	reach
agreement 	on ground rules, 	the 	State was 	prepared 	to present
approximately 	twenty 	substantive 	proposals 	to 	PECG. 	The 	State
negotiator 	further 	stated 	that 	he was 	willing to 	continue 	to
discuss 	ground rules 	as well. 	PECG's 	negotiator 	stated he would
not 	agree 	to begin negotiations 	on 	substantive 	issues 	unless 	the
parties 	reached 	agreement 	on 	ground 	rules.
Just prior to 	a 	caucus 	at 	11:05 	a.m., 	the 	State 	negotiator 	once
again 	offered 	to 	negotiate 	substantive 	issues 	with 	or without
ground rules. 	PECG's 	negotiator again 	stated he wanted 	to
discuss 	ground 	rules. 	The 	State's 	negotiator 	stated 	"we don't
believe 	that 	the 	conditioning 	of 	reaching 	agreement 	on ground
rules 	is 	conducive 	to 	full 	bargaining." 	The 	State 	negotiator
again 	requested 	PECG's 	negotiator 	to 	reconsider 	accepting 	the
State's proposals 	that were prepared 	for June 	1, 	1991.
The parties 	reconvened at 	11:55 	a.m. 	and 	continued 	to discuss
ground 	rules. 	The differences 	centered 	on the 	number of
bargaining 	team members 	on State 	release 	time. 	The 	State had
proposed 	four, 	the Union requested 	five. 	The 	State negotiator
again 	offered 	to present proposals 	to 	PECG whether 	or not 	ground
rules were 	agreed upon. 	PECG'S 	negotiator 	stated 	"no proposals,
we 	are 	here 	to 	try to resolve 	ground 	rules, 	we will 	continue 	to
discuss 	ground 	rules." 	The 	State 	negotiator again asked PECG's
negotiator 	if 	he was 	refusing 	to 	negotiate with 	the 	State 	and was
he 	conditioning 	negotiations 	of 	proposals 	with 	reaching 	prior
agreement 	on ground rules. 	PECG's 	negotiator 	stated 	"we'll
discuss 	ground rules."
The 	morning 	session 	ended 	at 	12:15 	p.m. 	and 	reconvened 	at
1:55 	p.m. 	The 	parties 	continued 	to 	discuss 	ground 	rules 	until
2:10 p.m. 	when a 	caucus was 	called by the 	State. 	Just before 	the
caucus, 	the 	State 	negotiator proposed 	four team members 	on
release 	time 	and 	an 	"expert" 	who would have 	release 	time upon
mutual 	agreement. 	At 	2:58 	p.m. 	a 	PECG 	representative wanted 	to
know when the 	State 	negotiators 	would 	return. 	At 	3:02 	p.m.
PECG's 	negotiator 	stated they 	had 	to 	leave 	at 	3:15 	p.m. 	to 	catch
a 	plane. 	The parties 	reconvened at 	3:05 	p.m. 	During this

Letter to M. 	Jeffrey Fine
Page 3
June 26, 	1991
discussion, 	PECG's 	negotiator again 	stated 	"we have 	a plane
problem." 	The 	State 	negotiator 	stated 	"we 	are prepared 	to
present proposals 	until 	at 	least 	5:00 	p.m. 	today and we 	are
prepared 	to bargain 	into 	the 	evening."
The 	State 	negotiator 	again 	asked 	PECG's 	negotiator 	"are 	you
conditioning 	negotiating 	of 	proposals 	without 	reaching 	agreement
on ground 	rules?" 	PECG's 	negotiator 	stated 	"we 	are 	out 	of 	time."
He 	also 	stated 	two 	members 	had 	to 	catch planes. 	The 	State
negotiator 	stated we 	are prepared 	to 	meet with 	the 	balance 	of
your team 	into 	the 	evening. 	PECG's 	negotiator 	stated 	"staying
until 	5:00 p.m. 	is 	not an option."
The 	State 	negotiator offered to meet 	on Monday, 	June 	3, 	1991 	at
5:30 	p.m. 	or during the day 	and 	into 	the 	evening. 	PECG requested
a 	caucus 	at 	3:20 	p.m. 	A PECG 	team member 	informed 	the 	State
negotiator that 	PECG was 	leaving. 	At 	the 	State 	negotiator's
request, 	the parties 	reconvened at 	3:22 p.m. 	to determine where
the 	differences were 	in positions 	on 	ground 	rules.
The State negotiator offered June 	3, 	June 	5, 	June 	6, 	June 	7 and
June 	9, 	1991 	as possible dates 	for negotiations. 	PECG's
negotiator 	said he would meet on Wednesday, 	June 	5, 	1991 	at
10:00 a.m. 	at PECG's offices 	in Sacramento, 	California.
The 	State 	negotiator 	again offered 	to 	bargain with 	the 	remaining
PECG team members 	into the 	evening 	of 	June 	1, 	1991. 	The 	State
negotiator 	stated 	"we 	have 	been prepared 	to 	present 	approximately
twenty 	substantive proposals without 	ground 	rules. 	"Are 	you
prepared 	to 	continue 	bargaining 	today?" 	PECG's 	negotiator
responded 	by 	saying 	"let's 	discuss 	that 	Monday." 	Bargaining
ended 	at 	3:26 	p.m.
On June 	5, 	1991, 	the parties met and exchanged materials
regarding 	issues 	other 	than 	ground 	rules 	and 	agreed 	to 	discuss
issues of mutual 	interest. 	However, 	the parties did not
negotiate 	because 	PECG's 	full 	bargaining 	team was 	not present.
On June 	12, 	1991, 	the parties met and PECG's 	negotiator,
Mr. 	Bruce Blanning, 	indicated that as 	the State has 	refused
State-paid 	release 	time 	for bargaining 	team members, 	he 	could not
bargain. 	Mr. 	Blanning gave State negotiator, 	Mr. 	Arnie Beck, 	a
letter 	indicating 	a 	number of 	alternatives 	to resolve 	the 	ground
rules 	issue. 	One of 	the alternatives was 	to use 	the 	services 	of
a mediator. 	Mr. 	Beck contacted the 	State Mediation and
Conciliation 	Services 	and 	arranged 	for 	the 	services 	of 	Dave 	Ruiz

Letter to M. 	Jeffrey Fine
Page 	4
June 26, 	1991
as 	a mediator. 	A mediation 	session was 	scheduled by Mr. 	Ruiz 	for
June 	19, 	1991. 	The parties met on June 	19, 	1991 	and reached
agreement 	on ground 	rules.
Based on the allegations 	set 	forth above, 	I 	do not 	find that you
have 	established a prima 	facie 	violation of 	the 	Dills 	Act.
The 	Public 	Employment Relations 	Board 	(PERB or Board) 	utilizes
either the 	"per 	se" 	or 	"totality of 	the conduct" 	test to
ascertain whether a 	party's 	negotiating 	conduct 	constitutes 	an
unfair practice, 	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.
Charging 	Party has 	failed 	to 	establish that 	the 	conduct 	by 	PECG
constitutes 	an unfair practice. 	Charging Party asserts 	that
Stockton Unified School District 	(1980) 	PERB Decision No. 	143,
supports 	its 	position 	that 	conditioning 	negotiation 	of
substantive 	issues 	on agreement 	on ground rules 	is 	an unfair
practice.
However, 	the 	facts 	in Stockton Unified School District, 	supra.
-
are 	distinguishable 	from 	the 	facts 	presented 	in 	this 	unfair
practice charge. 	In Stockton Unified, 	supra, 	the District's
newly 	appointed 	negotiator 	reneged 	on 	an 	agreement 	for 	ground
rules, 	which was 	reached between the 	employee organization and
the 	negotiator's predecessor. 	In addition to reneging 	on
previously 	agreed upon ground 	rules, 	the 	District 	also 	engaged 	in
a 	course 	of 	conduct, 	which 	the 	Board 	found 	to be 	an unfair 	labor
practice. 	As 	stated by one 	of 	the 	two 	Board members 	in Stockton
Unified School District, 	supra.
. 	. 	. 	conditioning negotiation of substantive
issues 	on agreement 	on ground rules was 	a
part 	of 	a 	total 	course of 	conduct which taken
together 	establishes 	a 	violation 	of 	section
3543.5(c), 	it is not necessary to decide here
whether 	it 	constituted 	a per 	se violation.
The 	second 	Board 	member 	considered 	conditioning 	negotiation 	of
substantive 	issues 	on 	agreement 	on 	ground 	rules 	as 	evidence 	of
failing 	to bargaining 	in good 	faith, 	but did 	not 	find 	it 	to be 	a
per 	se violation. 	Thus, 	conditioning negotiation of 	substantive
- -	issues 	on agreement 	on ground 	rules 	is 	not 	a per 	se 	violation and
there 	is 	no prima 	facie 	case 	under that theory.- -

Letter to M. 	Jeffrey Fine
Page 	5
June 26, 	1991
In addition, 	Charging Party has 	failed to demonstrate 	any 	facts
here that the 	actions 	by PECG were part of 	a total 	course of
unlawful 	conduct. 	The parties 	had only met 	for a 	short period of
time when this 	unfair practice 	charge was 	filed. 	During 	the
June 	5, 	1991 	meeting, 	the parties 	exchanged materials and agreed
to discuss 	issues 	of mutual 	interest, 	but did not negotiate
because 	PECG 	did 	not have 	its 	full 	bargaining team present.
During the June 	12, 	1991 	meeting, 	PECG proposed several
alternatives 	to 	resolve the ground rules 	issue. 	One of the
alternatives: 	to use a mediator; 	was chosen. 	Mr. 	Beck contacted
the 	State 	Mediation 	and Conciliation Services 	and 	arranged 	for
Mr. 	Ruiz 	to mediate 	the 	issues 	of ground rules. 	A mediation
session was 	scheduled by Mr. 	Ruiz 	for June 	19, 	1991. 	The parties
met 	on June 	19 	and reached 	agreement 	on ground 	rules.
The 	conduct 	by 	PECG 	in this 	case does 	not 	rise 	to 	the 	same 	level
of 	totality of 	conduct as 	found 	in Stockton, 	supra, 	to be an
unfair practice. 	Therefore, 	Charging Party has 	failed to
demonstrate 	that 	PECG has 	violated 	section 	3519.5(c) 	of 	the 	Dills
Act.
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 	any 	additional 	facts 	that would 	correct 	the
deficiencies 	explained above, 	please 	amend 	the 	charge
accordingly. 	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 	must 	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
July 	5, 	1991, 	I 	shall dismiss your charge. 	If you have any
questions, 	please call me at 	(916) 	322-3198.
Sincerely,
Michael E. 	Gash
Regional 	Attorney