State of California (Department of Personnel Administration) (California State Employees Association) (PERB 0995S)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA STATE 	EMPLOYEES'
ASSOCIATION, 	SEIU, 	LOCAL 1000,
Charging 	Party,
v.
STATE 	OF 	CALIFORNIA 	(DEPARTMENT
OF 	PERSONNEL ADMINISTRATION)
Respondent.
)
)
) 	Case No . S-CE-522-S
PERB Decision No. 	995-S
May 	10, 1993
)
)
)
Appearances: 	Barbara E. 	Brecher, 	Attorney, 	for California State
Employees' Association, 	SEIU, 	Local 1000; Joan Branin, 	Labor
Relations 	Counsel, 	for State 	of 	California 	(Department 	of
Personnel Administration).
Before Blair, 	Chair; 	Hesse and Caffrey, 	Members.
DECISION
CAFFREY, 	Member: 	This 	case is before the Public Employment
Relations 	Board 	(PERB or Board) 	on exceptions 	filed by the
California State Employees' 	Association, 	SEIU, 	Local 	1000 	(CSEA)
to a 	PERB administrative 	law judge's 	(ALJ) 	proposed decision
(attached hereto). 	The ALJ dismissed CSEA's 	complaint which
alleged 	that 	the 	State 	of 	California 	(Department 	of 	Personnel
Administration) 	(DPA) violated section 3519(a), 	(b) 	and 	(c), 	and
section 3518.5 	of the Ralph C. 	Dills Act 	(Dills Act)1 when it
1The Dills Act 	is 	codified at 	Government 	Code 	section 	3512
et 	seq. 	Section 3519 provides, 	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
)

refused 	to 	grant 	released 	time 	for preparation between bargaining
sessions beginning on or about August 26, 	1991. 	CSEA alleged
that 	DPA altered 	the 	established 	released 	time 	policy without
providing 	CSEA notice 	and an 	opportunity 	to 	negotiate 	over 	the
policy change. 	After review of 	the 	entire 	record 	in this 	case,
including the proposed decision, 	the hearing transcript, 	the
exhibits, 	CSEA's 	exceptions and DPA's 	response thereto, 	the Board
adopts 	the ALJ's proposed decision as 	the decision of 	the Board
itself 	consistent 	with 	the 	following 	discussion.
to interfere with, 	restrain, 	or coerce
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.
(c) 	Refuse or 	fail 	to meet and confer in
good 	faith with 	a 	recognized 	employee
organization.
Although not 	included 	in the 	complaint, 	the ALJ 	found the
evidence 	also presented an alleged 	section 	3519(e) 	violation.
(e) 	Refuse 	to participate 	in good faith in
the mediation procedure 	set 	forth 	in
Section 3518.
Section 3518.5 provides, 	in pertinent part:
A reasonable 	number 	of 	employee
representatives 	of 	recognized 	employee
organizations 	shall 	be 	granted 	reasonable
time 	off without 	loss 	of 	compensation or
other benefits 	when 	formally meeting and
conferring with 	representatives 	of 	the 	state
on matters within the 	scope 	of
representation.
22

BACKGROUND
The detailed 	factual 	background of 	this 	case 	is 	included 	in
the 	"Findings 	of 	Fact" 	section of 	the ALJ's proposed decision
(pages 	3-17). 	Among the 	significant 	facts are 	the 	released time
provisions 	of 	the 	ground 	rules 	agreed 	to by CSEA and DPA prior 	to
the 	1987, 	1988 and 1991 bargaining cycles. 	The 	1987 ground rules
state:
The 	State 	agrees 	to grant 	time 	off
without loss of compensation to a total of
thirty-six 	(36) 	members 	of 	the Union's nine
(9) 	Bargaining Unit Councils, 	to be selected
by 	the Union, 	for their entire work shift 	on
any day 	there 	is 	a negotiating 	or preparation
session 	scheduled 	for 	their 	respective
Bargaining Unit. 	. 	. 	. 	This time off shall
apply only 	to 	those 	employees 	listed 	in
attachment 	B 	for 	the 	schedule 	in
attachment 	A . 	. . .
(Emphasis 	added.)
Released 	time 	for bargaining preparation was 	expressly
authorized. 	The ground rules 	also 	incorporated a schedule 	of
bargaining 	days 	for each bargaining unit, 	essentially 	calling 	for
two-day bargaining 	sessions 	with 	the 	first 	day 	for preparation
and 	the 	second day 	for actual 	bargaining. 	Negotiations 	were 	held
on a 	daily basis 	when agreement 	seemed 	imminent.
For the 	1988 negotiations, 	the ground rules 	state:
The 	State agrees 	to grant 	time 	off without
loss 	of 	compensation to a 	total 	of 	thirty-two
(32) 	members of the Union's eight 	(8)
Bargaining Unit 	Councils, 	to be 	selected by
the Union, 	for their entire work shift 	on any
day there 	is 	a negotiating 	session scheduled
for their respective bargaining unit. 	. 	. 	.
This 	time 	off 	shall 	apply only to 	those
employees 	listed 	in Attachment 	B 	for 	the
schedule in Attachment A. 	. 	. 	.
(Emphasis 	added.)
33

While 	a 	specific 	reference 	to 	released 	time 	for bargaining
preparation was 	not 	included, 	a bargaining 	schedule was
incorporated 	into 	the 	ground 	rules 	which 	called 	for 	two-day-
sessions 	which 	the 	parties 	acknowledged 	included 	one 	day 	open
(for preparation) 	and one day for actual bargaining.
The ground rules 	for 1991, 	the bargaining cycle which
resulted in the charges 	in this 	case, 	state:
The 	State 	agrees 	to grant 	time 	off without
loss 	of 	compensation 	to a 	total 	of 	thirty-two
(32) 	members of the Union's eight 	(8)
remaining Bargaining Unit 	Councils, 	to be
selected by the Union, 	for their entire work
shift 	on any day there 	is 	a negotiating
session 	scheduled 	for 	their 	respective
bargaining unit. 	. 	. 	. 	This time off shall
apply only 	to 	those 	employees 	listed 	in
Attachment A, 	Column A. 	. . .
(Emphasis 	added.)
Unlike the previous provisions, 	the 	1991 ground rules did not
include 	either a 	specific 	reference 	to 	released 	time 	for
preparation or a bargaining 	schedule which, 	by acknowledgement 	of
the parties, 	included released time 	for planned open or
preparation days.
Prior to adoption of 	the 1991 ground rules on May 22, 	1991,
union 	leave was 	used by CSEA for bargaining 	sessions 	on May 	6 	and
May 	16. 	Released time was used 	for bargaining 	sessions 	on May 22
and 30, 	and June 7, 	13, 	14, 	24 and 25. 	CSEA used union leave,
rather than released time, 	for bargaining preparation on
May 21, 	28 and 31, 	and June 5, 	6, 	11, 	12, 	20, 	21 and 26.
No 	released 	time was 	given 	for bargaining preparation prior
to 	July when DPA granted 	continuous 	released 	time 	to bargaining
4

team members. 	Between July 1 and August 	23, 	1991, 	there were 21
bargaining days and 18 	open or preparation days, 	all 	on released
time. 	The 	continuous 	released 	time was 	rescinded by DPA after
August 23, 	1991 due 	to DPA's 	dissatisfaction with the progress 	of
negotiations 	and with 	the 	effectiveness 	of 	granting 	continuous
released 	time. 	Released 	time was 	granted 	for actual 	negotiating
sessions 	only 	following August 	23.
CSEA'S 	EXCEPTIONS
On appeal,. 	CSEA excepts 	to the ALJ's 	conclusion that 	the
status 	quo 	for released time 	in this 	case 	is 	defined by the
ground 	rules 	negotiated by 	the 	parties 	as 	modified by any
deviations 	from the 	ground 	rules 	which have 	been mutually agreed
to by the parties. 	CSEA argues 	that 	the practice 	of 	granting
released 	time 	for both bargaining 	and bargaining preparation 	in
19 87 	and 	1988, 	and in 	1991 beginning 	in July and extending to
August 23, 	1991, 	represents the status quo.
CSEA also 	excepts 	to 	the ALJ's 	finding 	that 	the 	reasonable
released 	time 	requirement 	of Dills Act 	section 3518.5 	was 	not
violated in this 	case. 	In support of 	this exception, 	CSEA
reiterates 	the 	testimony 	of 	a 	CSEA bargaining 	team member 	that
the 	elimination of 	released time 	for preparation made 	it
difficult 	after August 	23 	for 	CSEA to 	counter DPA proposals 	and
develop 	its 	own proposals 	for presentation at bargaining
sessions.
55

DISCUSSION
To establish a unilateral 	change, 	the 	charging party must
show that: 	(1) 	the employer breached or altered the parties'
written agreement or established past practice; 	(2) 	such action
was 	taken without 	giving 	the 	exclusive 	representative 	notice 	or
an opportunity to bargain over the change; 	(3) 	the change 	is not
merely an 	isolated breach of 	the 	contract, 	but 	amounts 	to a
change 	of policy 	(i.e., 	has 	a generalized effect 	or continuing
impact upon bargaining unit members' 	terms 	and conditions 	of
employment); 	and 	(4) 	the change in policy concerns a matter
within the 	scope 	of 	representation. 	(Grant 	Joint Union High
School District 	(1982) 	PERB Decision No. 	196; 	Glendora Unified
School District 	(1991) 	PERB Decision No. 	876.)
An 	established policy may be 	embodied 	in 	the 	terms 	of 	a
collective 	bargaining agreement 	(Grant 	Joint 	Union High 	School
District, supra, PERB Decision No. 	196); 	or, 	where a contract is
silent 	or ambiguous, 	it may be determined 	from past practice 	or
bargaining 	history 	(Rio 	Hondo 	Community 	College 	District 	(1982)
PERB Decision No. 	279). 	Ground rule agreements 	represent a
contractual 	obligation 	for purposes 	of 	determining whether a
unilateral 	change 	from them constitutes 	a violation. 	(Stockton
Unified School District 	(1980) 	PERB Decision No. 	143.)
CSEA argues 	that 	the 	established past 	practice 	in this 	case
is 	the 	granting 	of 	released 	time 	for both bargaining 	sessions 	and
bargaining preparation during negotiations 	in 1987 	and 	1988, 	and
in 	1991 beginning 	in July and extending to August 	23, 	without
66

reference 	to 	the negotiated ground rules 	in effect. 	When
released 	time 	for bargaining preparation was 	no 	longer 	granted by
DPA after August 	23 	without 	granting an 	opportunity 	to bargain
over the 	change, 	CSEA alleges 	that 	an unlawful 	unilateral 	change
occurred.
DPA argues 	that 	no violation occurred because 	it
consistently provided at 	least 	the 	level 	of 	released 	time 	called
for by the ground rules negotiated by the parties. 	In 1991, 	DPA
contends 	released 	time 	for preparation was 	not 	included 	in 	the
ground rule 	requirements, 	and was 	granted 	temporarily only
through the mutual 	agreement 	of 	the parties.
A review of 	the 	1987 	and 	1988 	bargaining ground 	rules
reveals 	the 	clear 	intent 	of 	the parties 	that 	released time be
granted for bargaining preparation. 	In 	1991 	the 	circumstances,
and the 	ground 	rules, 	changed however. 	CSEA proposed ground
rules 	that 	specifically authorized 	released 	time 	for preparation
and travel. 	DPA testified that 	it 	attempted to 	include a
specific bargaining schedule 	in the 	1991 ground rules, 	as had
been done 	in 1987 and 	1988, 	but 	CSEA declined to do so. 	The
ground 	rules 	which were 	then adopted by 	the 	parties 	included 	no
specific authorization of 	released time 	for preparation, 	and no
bargaining 	schedule 	which 	included 	acknowledged 	open 	or
preparation days. 	The unambiguous 	terms 	of 	these ground rules
lead 	to 	the 	conclusion that 	the parties 	have 	agreed 	to 	released
time 	only 	for negotiating 	sessions.
77

CSEA contends 	that 	the 	ground 	rules 	reference 	to
"negotiation 	sessions" 	was 	intended to 	include preparation time,
but 	the 	record does not 	support 	that 	contention. 	CSEA's proposal
to 	specifically 	include 	released 	time 	for preparation 	in 	the
ground 	rules 	was 	not 	adopted by 	the parties 	and the 	ground 	rules
included 	no bargaining 	schedule 	calling 	for 	open 	or preparation
days. 	Furthermore, 	the actions of 	the parties before July
constitute 	a 	tacit 	acknowledgment 	that 	the 	ground 	rules 	did not
provide 	released 	time 	for preparation 	since 	CSEA utilized union
leave 	for nine preparation days 	in May and June 	after adoption of
the 	ground rules.
DPA testified 	that 	beginning 	in July 	it 	authorized
continuous 	released 	time 	in 	the 	interest 	of 	encouraging movement
toward settlement. 	As determined by 	the ALJ, 	the 	fact 	that DPA
agreed 	to grant 	released 	time 	over and above 	the 	level 	required
by 	the 	ground 	rules 	does 	not 	establish a higher 	level 	obligation
for released time which DPA can not 	reduce. 	As 	the Board has
held 	"[T]he mere 	fact 	that 	an 	employer has 	not 	chosen 	to 	enforce
its 	contractual 	rights 	in the past does not mean that, 	ipso
facto, 	it 	is 	forever precluded from doing so." 	(Marysville Joint
Unified School District 	(1983) 	PERB Decision No. 	314.)
Temporarily authorizing a higher 	level 	of 	released 	time 	than 	that
required by 	the 	negotiated ground 	rules 	does 	not 	create 	an
obligation to 	continue 	to do 	so 	indefinitely. 	The Board,
therefore, 	concludes 	that DPA did not alter the parties' 	written
88

ground 	rules 	or established past 	practice when 	it 	agreed 	to
released 	time 	only 	for negotiating 	sessions 	after August 	23.
CSEA also 	contends 	that as a matter of 	law, 	it was denied
reasonable 	released time under Dills Act 	section 3518.5 	when DPA
denied 	released 	time 	for preparation days. 	CSEA asserts 	that
elimination 	of 	preparation days 	"immobilized 	further meaningful
negotiations 	between 	the 	state 	and 	the 	CSEA" 	because 	CSEA was
unable 	to 	counter state proposals.
As 	noted by 	the ALJ, 	whether the amount 	of 	released time 	is
reasonable 	is 	a question of 	fact 	to be 	determined on a 	case-by-
case basis. 	(Sierra Joint 	Community College District 	(1981) 	PERB
Decision No. 	179.) 	The Board has 	evaluated specific
circumstances 	and determined 	that 	a 	refusal 	to grant 	released
time 	did not 	deny 	rights 	to an exclusive 	representative.2
The ALJ noted that 	CSEA's 	Unit 	1 	bargaining 	team received
released 	time 	for 	1991 	far 	in excess 	of 	that 	received in previous
negotiations. 	A review of 	the 	level 	of 	released time 	received by
an 	exclusive 	representative 	in previous 	negotiation 	cycles 	can be
instructive 	in 	evaluating 	the 	reasonableness 	of 	released 	time 	in
disputed cases. 	More compelling in this case, 	however, 	is 	the
fact 	that 	CSEA received released time 	in accordance with, 	and 	in
excess 	of, 	the ground rules 	it 	negotiated and agreed to with DPA.
2Burbank Unified School District 	(1978) 	PERB Decision No. 	67
(no violation where 	district 	refused union's 	request 	for 	released
time for seven union negotiators); 	Muroc Unified School District .
(1978) 	PERB Decision No. 	80 	(no violation when district 	refused
to 	grant 	released 	time 	to 	teachers 	for 	rest 	and 	recuperation 	the
day after the negotiating session ended at 	3:00 	a.m.).
99

When DPA returned 	to 	the 	level 	of 	released 	time 	required by 	the
negotiated ground rules, 	CSEA then argued that 	the mutually-
agreed to 	level 	was 	not 	reasonable. 	Under these 	circumstances 	it
cannot 	be 	concluded 	that 	DPA denied 	reasonable 	released 	time 	to
CSEA, 	and this 	exception is 	rejected.
ORDER
The unfair practice 	charge 	in Case No. 	S-CE-522-S 	is 	hereby
DISMISSED.
Chair Blair and Member Hesse 	joined 	in this 	Decision.
10

STATE 	OF 	CALIFORNIA
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA 	STATE 	EMPLOYEES
ASSOCIATION, 	SEIU, 	LOCAL 	1000,
Charging 	Party,
v.
STATE 	OF 	CALIFORNIA 	(DEPARTMENT OF
PERSONNEL ADMINISTRATION),
Respondent.
)
)
)
) 	Unfair Practice
Case No. 	S-CE-522-S
PROPOSED DECISION
(2/19/92)
)
)
)
)
)
)
)
Appearances: 	Barbara E. 	Brecher, 	Attorney, 	for California State
Employees Association, 	SEIU, 	Local 	1000; 	Joan Branin, 	Labor
Relations 	Counsel, 	for State of California 	(Department of
Personnel Administration).
Before Christine A. 	Bologna, 	Administrative Law Judge.
PROCEDURAL 	HISTORY
This 	case 	alleges 	unilateral 	change 	and denial 	of 	reasonable
released 	time when preparation 	time was 	eliminated 	during
contract 	negotiations. 	The 	state 	employer points 	to the
negotiated 	ground 	rules 	agreement 	and denies 	any 	violation 	of 	the
union's 	statutory rights.
On August 30, 	1991, 	the California State Employees
Association, 	SEIU, 	Local 	1000 	(Charging Party or CSEA) 	filed an
unfair practice 	charge 	against 	the 	State 	of 	California
(Department of Personnel Administration) 	(Respondent or DPA).
On October 	22, 	the 	general 	counsel 	of 	the Public 	Employment
Relations 	Board 	(PERB or Board) 	issued a 	complaint 	alleging that
Respondent violated 	section 3519(c) 	of the Ralph C. 	Dills Act
(Dills Act) 	and, 	independently, 	section 3519(a) 	and 	(b) 	of the
This proposed decision has been appealed to the
Board itself and may not be cited as precedent
unless the decision and its rationale have been
adopted by the Board.
__ )

statute,1 by 	changing 	established policy when 	it 	refused 	to 	grant
released 	time 	for preparation between bargaining 	sessions 	on 	or
about July 30, 	1991, 	without prior notice to and affording
Charging 	Party 	an opportunity 	to 	negotiate 	over 	the 	decision or
its 	effects. 	DPA filed a timely answer on November 	18, 	denying
any unfair practices 	and 	asserting 	affirmative defenses.
An 	informal 	settlement 	conference 	conducted by 	a 	PERB
administrative 	law judge 	(ALJ) 	on October 	28 	did not resolve 	the
dispute. 	Formal hearing was held on November 5 	and 	18, 	and
December 6 and 19, 	1991, 	in Sacramento, 	California.
1Unless otherwise 	indicated, 	all 	statutory references
herein are to the Government Code. 	The Dills Act 	is 	codified at
Government Code 	section 	3512 	et 	seq. 	and 	is 	administered by PERB,
In pertinent part, 	section 3519 provides that:
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
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.
(e) 	Refuse to participate 	in good faith 	in
the mediation procedure 	set 	forth 	in 	section
3518.
N	2

Charging 	Party was 	allowed 	to present 	evidence 	of 	bargaining
history 	for 	all 	CSEA bargaining 	units 	included within 	the
negotiated 	ground 	rules 	agreement, 	and 	on 	the 	alternative 	cause
of 	action of 	denial 	of 	the 	statutory right 	to reasonable 	released
time,2 over the objection of 	Respondent.3 The parties 	stipulated
to 	limit 	the 	evidence to 	the 	last 	three 	negotiations 	for 	state
bargaining unit 	one.
With the 	filing of post-hearing briefs, 	the matter was
submitted for decision on January 	30, 	1992.
FINDINGS 	OF 	FACT
Charging 	Party 	is 	an 	employee 	organization within 	the
meaning of Dills Act 	section 3513(a), 	and the exclusive
representative of 	an appropriate unit 	of 	state 	employees 	under
2Dills Act 	section 	3518.5 provides 	as 	follows:
A 	reasonable 	number 	of 	employee
representatives 	of 	recognized 	employee
organizations 	shall 	be 	granted 	reasonable
time 	off without 	loss 	of 	compensation or
other 	benefits 	when 	formally meeting 	and
conferring with 	representatives 	of 	the
state on matters within the 	scope 	of
representation.
This 	section 	shall 	apply only to 	state
employees, 	. 	. 	. 	and only for periods when a
memorandum of 	understanding 	is 	not 	in effect.
Section 	3518.5 was 	cited 	in the unfair practice 	charge 	but
was 	not mentioned 	in the 	complaint.
3Respondent 	objected 	to 	the 	first 	ruling on relevance
grounds, 	and to the 	second as 	an improper expansion of 	and
amendment to 	the 	complaint. 	The ALJ 	also 	ruled that 	Respondent
could offer the practices 	in other bargaining units, 	including
those 	not represented by CSEA, 	in defending against 	the 	statutory
released time 	claim, 	over the 	objection of 	Charging Party.
33

section 	3513(b) 	of the 	statute.4 Respondent is 	the 	state
employer within the meaning of 	Dills Act 	section 	3513(j).
State bargaining unit one 	(Administrative, 	Financial 	and
Staff Services) 	(Unit 	1) 	contains more than 29,000 	employees 	in
500+ 	civil 	service 	classes;5 virtually all 	of the 	100+ 	state
departments 	employ Unit 	1 	staff at 	some 	720 worksites. 	Unit 	1
has 	been represented by CSEA 	for more 	than ten years. 	CSEA and
the 	state 	have 	negotiated 	a 	number of 	comprehensive 	contracts 	and
reopener agreements 	for Unit 	1 	since 	1982.
6
7
4Section 3513(b) 	of the Dills Act defines 	a 	"recognized
employee 	organization" 	as 	an 	employee organization recognized
by the 	state 	as 	the 	exclusive representative of 	employees 	in an
appropriate unit.
5Some Unit 	1 	classes 	are used by only one department; 	i.e.,
District 	Sales 	Representative, 	California 	State 	Lottery. 	Other
Unit 	1 	classes 	are used by many and/or all 	state departments;
i.e., 	Staff Service Analyst 	(General).
6Unit 	1 	employees 	include accountants; 	administrative
assistants; 	analysts; 	auditors; 	agents and appraisers; 	buyers;
consultants; 	claims 	examiners; 	computer operators and data
processors; 	financial and information officers; 	planners; 	program
technicians and specialists; 	statisticians; 	and lottery, 	tax and
unemployment 	representatives.
7(Unit Determination for the 	State of California 	(1979) 	PERB
Decision No. 	110-S.) 	CSEA was 	certified as 	the exclusive
representative for Unit 	1 on July 7, 	1981, 	following a
representation election conducted by PERB 	(Case No. 	S-R-l-S).
PERB Regulation 32120 	(tit. 	8, 	Cal. 	Code of Regs., 	sec. 	32120)
requires 	the 	state 	employer to 	file 	a 	copy of 	its 	contracts 	with
exclusive 	representatives 	in the 	Sacramento 	Regional 	Office. 	The
Board 	and 	its 	agents 	may take 	official 	notice of documents 	in
PERB 	files 	and records. 	(Antelope Valley Community College
District 	(1979) 	PERB Decision No. 	97; 	John Swett Unified School
District 	(1981) 	PERB Decision No. 	188; 	Compton Community College
District 	(1988) 	PERB Decision No. 	704.)	'
4

1987 	Ground Rules. 	Negotiations 	and Contract
Since at least 	1987, 	Unit 	1 	and the 	state have negotiated
over 	"coalition" 	ground 	rules 	with 	other 	CSEA-represented
bargaining units 	before 	bargaining 	over 	successor 	contracts 	on 	an
individual unit basis. 	In 	1987, 	Rick McWilliam 	(McWilliam), 	DPA
chief 	of 	labor relations, 	was 	the 	state's 	chief 	negotiator over
ground rules, 	while John Hamilton 	served as 	CSEA's 	chief
negotiator. 	On May 	18, 	the parties 	signed a three-page, 	18-
paragraph 	ground 	rules 	agreement.
The 	released 	time 	clause 	stated:
The 	state 	agrees 	to grant 	time off without
loss 	of 	compensation to a total 	of thirty-
six 	(36) 	members 	of the Union's 	nine 	(9)
Bargaining Unit Councils, 	to be 	selected by
the union, 	for their entire work 	shift on any
day there 	is 	a 	negotiatin----g---or preparatio-----n--
session 	scheduled 	for 	their 	respective
bargaining unit. 	[Emphasis 	added.]
The 	ground 	rules 	further provided 	that 	the 	balance 	of 	CSEA's
bargaining teams would be 	granted union 	leave,8 compensable 	time
off 	(CTO), 	vacation, 	or other authorized unpaid leave of absence,
with 	other 	employees 	released by mutual 	consent. 	CSEA designated
the 	team members 	on released time, 	and their 	status would 	not
change 	throughout the negotiations. 9 	Each 	team could bring
88 If 	an employee was 	on paid union leave, 	CSEA reimbursed the
state for the employee's 	entire 	salary, 	plus 	3 5 percent of wages
for benefits. 	Union 	leave 	could also be unpaid.
9Released time was 	given to 	36 	employees 	in the aggregate,
an average of 	four per team. 	Ronald Almquist 	(Almquist), 	CSEA
manager 	for bargaining 	services 	and 	research, 	explained 	that 	the
union placed 	the 	lowest 	paid 	employee-negotiators 	on union 	leave
and 	selected 	higher 	salaried workers 	for 	released 	time.
Almquist, 	McWilliam and Cathy Hackett 	(Hackett), 	Unit 	1
55

observers 	and 	call 	experts 	and other witnesses.1100 	Travel was 	on
the employees' 	own time, 	except for three remote locations;
travel from Los Angeles, 	San Francisco, 	San Diego, 	Riverside and
Ontario was 	specifically 	excluded 	from released 	time. 	Caucuses
were 	limited to one hour.1111
The 	ground 	rules 	incorporated 	a 	negotiating 	schedule 	for
each bargaining unit. 	Unit 	1 	bargaining was held on June 	2, 	9,
16 	and 23, 	and released time was 	granted to the union team. 	The
Unit 	1 	team also 	received 	released time 	for preparation on
June 	1, 	8, 	15 and 22. 	Additional time for Unit 	1 negotiations
was 	scheduled from 	10:30 	a.m. 	to 	12:30 p.m. 	on June 	28, 	29 	and
30. 	Thus, 	the 	1987 ground rules authorized 	11 days of released
time 	for union negotiators: 	four for bargaining, 	four for
preparation and 	an additional 	three days.
McWilliam 	agreed to 	two days 	of 	released 	time 	for
negotiating sessions, 	with the 	first devoted to preparation, 	in
the 	ground 	rules 	in return 	for 	a 	definite weekly bargaining
schedule 	and 	limited 	caucus 	time. 	The parties 	also 	negotiated
daily around the 	time of 	contract 	expiration, 	and the 	state
granted 	continuous 	released time 	to 	the union team, 	when
chairperson, 	agreed that unit 	1 	team members were on released
time 	as 	they were higher paid than other unit negotiators.
10CSEA observers were 	required to use 	their own time. 	Union
witnesses 	and 	experts would be 	on their own time, 	or 	could be
released on vacation, 	CTO, 	union leave or authorized 	leave
without pay, 	subject to 	state operational needs.
11If caucuses 	lasted more than 	60 	minutes, 	the 	session would
end 	and reconvene 	at the 	next 	scheduled meeting. 	Bargaining 	team
members were required to 	return to work.
6

agreement 	seemed 	imminent.12 Hackett 	recalled 	a 	one-to-one 	ratio
between released time 	for preparation and negotiating; 	i.e., 	for
every day of bargaining, 	the CSEA Unit 	1 	team received a day of
preparation 	on released 	time.1313
McWilliam was 	also 	the 	chief 	negotiator 	for 	the 	state 	in
Unit 	1 	successor contract bargaining in 	1987; 	the 	state team
included eight other members. 	The CSEA Unit 	1 	chief 	negotiator
was Peter McClory 	(McClory); 	12 to 	16 additional members were on
the union team. 	All 	bargaining took place 	in Sacramento. 	A new
contract was 	reached in July 	1987. 	The Unit 	1 	contract,
effective from August 	16, 	1987 through June 30, 	1988, 	was a
comprehensive document containing 	22 	articles, 	46 pages 	of text
and various 	addenda.
1988 	Ground Rules. 	Negotiations 	and Contract
In 	1988, 	McWilliam again served as 	chief 	negotiator 	for the
state 	in 	coalition ground rules 	bargaining, 	while 	the CSEA chief
negotiator was Tut Tate. 	The three-page, 	20-page ground rules
agreement was 	signed April 	25.14 The 	released 	time provision
stated:
l2McWilliam and James Wheatley 	(Wheatley), 	a member of the
state Unit 	1 	team, 	testified about this practice. 	Wheatley was
appointed as 	DPA 	senior 	labor relations 	officer 	in June 	1991, 	and
is 	the 	chief 	state negotiator 	for Unit 	1.
13Hackett did not participate 	in 	1987 	ground rules
negotiations 	for the union, 	but Wheatley was 	a member of 	the
state team.
14Hackett participated 	in 	1988 	ground 	rules 	negotiations 	for
CSEA, 	but Wheatley was not on the 	state team.
7

The 	state agrees 	to grant 	time off without
loss 	of 	compensation to a 	total 	of thirty-
two 	(32) 	members 	of the Union's 	eight 	(8)
Bargaining Unit Councils, 	to be 	selected by
the Union, 	for their entire 	shift on any day
there 	is 	a negotiating 	session 	scheduled 	for
their respective bargaining unit. 	[Emphasis
added.]
The 	remaining provisions 	were 	virtually 	identical 	to 	the
1987 	ground rules. 	Travel 	continued to be on the 	employee's 	own
time 	and disallowed 	for the 	five 	cities 	named 	in the 	1987 	ground
rules, 	but there were two additional remote 	locations. 	Caucus
times 	remained the 	same.
A 	schedule 	of 	negotiating 	sessions 	was 	incorporated 	into 	the
ground rules.15	15 It 	called 	for two 	consecutive days 	every two
weeks, 	one day for bargaining and one open; 	the union teams
received 	released 	time 	on both days. 	McWilliam agreed 	to 	this
arrangement 	to promote definite 	scheduling of 	negotiations,
accommodate the union members' 	travel, 	and provide better quality
bargaining 	time. 	Additional 	released 	time 	requests 	from CSEA 	for
meetings 	of union negotiators were denied; 	however, 	McWilliam
agreed to union leave. 	The Unit 	1 	team used the open days 	for
preparation.
McWilliam and McClory again 	served as 	the 	Unit 	1 	chief
negotiators 	for the 	state and union, 	respectively, 	in successor
contract 	bargaining. 	The 	state 	team 	included Wheatley 	and 	six
15McWilliam 	and Almquist 	agreed 	that 	the 	chief 	negotiators
for 	the 	bargaining 	units 	were 	totally 	responsible 	for 	scheduling,
including 	any 	time 	away 	from the 	table 	on released 	time 	or 	other
approved 	leave. 	Although witnesses were not 	sequestered, 	neither
was 	present during 	the other's 	testimony.
8

others; 	the union team 	included Hackett 	and 	14 	additional
members. 	All bargaining took place 	in Sacramento. 	Negotiations
continued on the 	established 	schedule 	through August 	31. 	No
negotiations were held, 	and no released time was 	afforded, 	from
September 	1 	through March 	198 9,16 when agreement was 	reached
after two days of mediation. 	The new Unit 	1 	contract, 	effective
May 18, 	1989, 	through June 30, 	1991, was again a comprehensive
document, 	containing 56 pages of text, 	three side letters, 	22
articles 	and 	four attachments.17
It 	is 	unclear exactly when Unit 	1 	bargaining began 	in
1988.18 If 	negotiations 	began the week the ground rules 	were
signed, 	the union team would have received 	20 	days 	of 	released
time, 	ten for bargaining and ten open, 	from April 	25 	through
August 	29. 	If 	bargaining 	started the week after agreement 	on
ground rules, 	i.e., 	the week of May 2, 	18 days of released time,
nine 	for negotiating and nine 	open, 	would have been afforded 	from
May 2 	through August 23.19
16A few 	"side bar" 	meetings with the 	state, 	for which the
union team received 	released time, 	were held 	in September and
October. 	In November, 	Unit 	1 	employees rejected the tentative
agreement 	in a 	contract 	ratification vote.
17According to McWilliam, 	Unit 	1 was one of the last
bargaining units 	to 	reach agreement with the 	state.
18Hackett 	recalled 	that 	negotiations 	began 	in May.
19These 	estimates 	are 	based 	on the 	established 	negotiating
schedule 	of 	two 	consecutive 	days 	every 	other week through
August 	31, 	when bargaining ended.
. .
99

1991 	Ground 	Rules 	and Negotiations
DPA principal 	labor relations 	officer Arnold Beck 	(Beck) 	was
the 	chief 	negotiator 	for the 	state 	in 	1991 	coalition ground 	rules
negotiations; 	his CSEA counterpart was Almquist. 	There was only
one mid-May meeting between the 	state 	and union teams. 	Before
that 	session, 	Almquist 	sent a two-page, 	four paragraph written
proposal 	to 	McWilliam. 	CSEA proposed 	the 	following 	language 	on
released 	time:
The 	state agrees 	to grant 	time off
without 	loss 	of 	compensation to 	the
five 	representatives 	of 	each of 	the 	nine
bargaining units, 	expert witnesses 	and the
four CSEA Civil 	Service 	Division officers 	for
the purpose of 	negotiating a new agreement.
Release time 	shall 	include negotiations.
travel time, 	preparation time and
ratification. 	[Emphasis 	added.]
This 	proposal was 	not discussed during 	the 	single 	session 	on
ground rules. 	The union wanted to 	conclude the 	ground rules
negotiations quickly, 	and get to the unit tables. 	The parties
talked 	about 	released 	time 	as 	discretionary with 	the 	state 	or 	a
union entitlement, 	but there was 	no 	specific dialogue on
scheduling, 	preparation time or other conditions. 	Agreement on
the 	ground rules was 	not 	reached at 	this 	meeting.
20
On May 22, 	the three-page, 	18 paragraph ground rules
agreement was 	signed by Beck, 	Almquist 	and Elizabeth Lindgren.21
20
Almquist 	characterized 	the 	coalition 	ground 	rules 	as
essentially negotiated by 	"fax", 	i.e., 	facsimile 	exchange of
proposals.
21Elizabeth Lindgren was 	the 	alternate 	deputy director 	for
bargaining 	in the CSEA civil 	service division.
10

The paragraph 	on released 	time 	stated:
The 	state 	agrees 	to 	grant time off without
loss 	of 	compensation to a total 	of 	thirty-
two 	(32) 	members 	of the Union's 	eight 	(8)
remaining[22] 	Union Bargaining Unit Councils,
to be 	selected by the Union, 	for their entire
shift on any day there 	is 	a 	negotiating-
session[23] 	scheduled 	for 	their 	respective
bargaining unit. 	[Emphasis 	added.]
The 	remaining 	ground 	rules were 	virtually 	identical 	to 	the 	1987
and 	1988 	ground rules. 	Travel 	continued to be on employee time,
disallowed 	for 	the 	five 	cities 	identified 	in prior 	ground 	rules,
and there were 	two 	additional 	remote 	locations. 	Caucuses
continued to be 	limited to 	60 	minutes. 	A 	schedule of dates 	for
negotiating 	sessions was 	not 	incorporated, 	however.
In 	1991, Rosmarie Duffy 	(Duffy), 	a CSEA senior labor
relations 	representative, 	was 	the 	chief 	negotiator 	for the 	six-
member union team,24 while Wheatley 	served 	as 	the 	chief
22CSEA Unit 	15 	(Allied Services) 	had 	separate ground rules.
23
The 	union witnesses 	defined 	a 	negotiating 	session broadly.
Caucus 	time 	included preparation during breaks 	in 	face-to-face
negotiations, 	and on days 	away from the table. 	Both caucusing
and preparation 	involved 	review and 	evaluation 	of 	management
proposals, 	drafting requests 	for information, 	preparation of
witnesses 	and preparation of 	counters. 	Hackett 	asserted that 	the
last 	three 	Unit 	1 	negotiations 	included 	caucuses 	lasting 	from one
to 	four hours 	on bargaining days. 	Wheatley agreed, 	adding that
lengthier 	caucuses 	occurred 	on 	multiple-day 	bargaining 	sessions
when direct 	negotiations 	took 	less 	than an entire day.
24The union team 	included Hackett, 	an associate budget
analyst with the 	Department 	of 	Transportation 	(Caltrans) 	in
Sacramento; 	Jim Hard, 	an employment program representative with
the Employment Development Development 	(EDD) 	in Sacramento; 	Sam
Giardo, 	an EDD 	employment program representative 	from Ontario;
Henry Ochoa, 	an accounting officer with Caltrans 	in Los Angeles;
and 	Dave Westin, 	an apprenticeship 	consultant with the 	Department
of 	Industrial 	Relations 	in Oakland.
11

negotiator 	for the 	six-member 	state 	Unit 	1 	team.25 All
negotiations were held 	in Sacramento. 	The 	expired contract was
extended through July 	18, 	and 	session-by-session until 	July 	26.
The CSEA Unit 	1 	team used union leave, 	rather than released
time, 	for the May 6 	and 	16 bargaining sessions because ground
rules 	had not been finalized. 	Unit 	1 	negotiations were held on
May 22 and 30, 	and June 7, 	13, 	14, 	24 and 2 5; 	the union team
received released time. 	The CSEA team used May 	21, 	28 	and 	31,
and June 5, 	6, 	11, 	12, 	20, 	21 and 26 for preparation, 	and took
union leave, 	not released time, 	on these days.
Duffy 	testified 	that during 	the 	June 	24-25 	negotiations,
Wheatley 	agreed 	to 	total 	released 	time 	for bargaining 	and
preparation until 	an agreement was 	reached. 	Wheatley 	testified
that 	on July 	2, 	he 	told the union team that he would give 	them
released 	time 	for preparation between 	negotiating 	sessions 	to
pick up the pace of bargaining, 	and to 	spend time more
productively 	in 	reviewing 	and presenting written proposals 	and
counterproposals 	(counters); 	the released time was 	to continue
until 	the 	contract 	expired. 	Released time was 	extended to 	days
away 	from 	face-to-face 	negotiations 	beginning July 	3, 	and 	the
CSEA Unit 	1 	team was 	on released time during all 	of 	July and
until August 23.26
25The state team included representatives from the Franchise
Tax Board, 	Department of 	Social Services, 	Board of Equalization,
Caltrans 	and EDD.
26The 	union team was 	granted 	released 	time 	for 	every
bargaining 	session except May 	6 	and 	16. 	Unit 	1 	bargaining was
conducted on the nine days noted above; 	on July 1, 	2, 	8, 	9, 	10,
12

17, 	18, 22, 24, 26, 29, 31; and on August 2, 6, 8, 	12, 	14, 	16,
19, 	21, 	23, 	26 and 28. 	Bargaining also took place on
September 6, 	9, 	10, 	16, 	17, 	23 and 24. 	Negotiations with the
mediator occurred on Halloween, 	November 8, 	21 	and December 	12.
A total 	of 	41 	days 	of released time was 	given to the 	Unit 	1
negotiators 	for bargaining. 	Released time 	for preparation was
granted to the team on July 3, 	5, 	11, 	12, 	15, 	16, 	19, 	23, 	25 and
30, and August 1, 	5, 	7, 	9, 	13, 	15, 	20 and 22, a total of 18 days.
As 	of the 	last day of hearing, 	the Unit 	1 	team had received 	5 9
days 	of 	released time.
CSEA presented 	a 	comprehensive 	opening proposal 	to 	the 	state
in 	late 	May or 	early June,27 which 	contained 	changes 	in existing
contract 	language, 	carryover clauses and new items. 	The 	state
presented 	a 	comprehensive 	response 	to 	the 	union on or about
June 	14.
28
Throughout July, 	the union explained 	its proposals
and 	called 	50 witnesses 	on a number of 	topics. 	In August, 	the
Unit 	1 	team continued to 	explain its 	proposals 	and 	called 	20 	more
27Wheatley 	testified 	that 	he 	first 	saw the 	union's 	opening
proposals 	around May 	22. 	Hackett 	testified that 	the union gave
its 	opening proposal to the 	state on June 	7. 	The parties'
initial proposals were 	"sunshined," 	i.e., 	presented at a public
meeting 	for public 	comment under Dills Act 	section 	3523, 	in
February.
28
The 	state proposals 	included a 	5 	percent 	salary reduction;
reduced 	employer contributions 	for health benefits; 	alternative
transportation; 	and rollover 	language 	for per diem allowances 	and
reimbursements, 	employee transfers 	and nonindustrial disability
insurance 	(NDI).
29
The witnesses' 	testimony ranged from 	15 minutes 	to two
hours. 	Some were group presentations 	on salary proposals.
30These 	included 	special 	salary 	and/or 	inequity 	adjustments
for specified classes; 	contracting out; 	child care; 	health and
safety; 	stewards' 	rights; 	testing; NDI; bilingual pay;
performance standards; 	employee transfers; 	election leave;
permanent 	intermittent 	employment; 	alternative work 	schedules;
and 	long-term 	care benefits.
29 	30
13

witnesses 	on a variety of 	subjects.31 During this 	time, 	the
union also presented new proposals 	and/or counters 	on existing
contract 	language. 	The 	state 	gave 	counters 	to the union on
July 	10, 	August 	2 	and 21.33 The parties 	also discussed a new
proposal, 	whether to 	support health benefits 	legislation.
By 	early August, 	Wheatley was 	dissatisfied with the progress
of Unit 	1 	negotiations. 	On August 8 and 	14, 	he told the union
team 	that he would 	eliminate 	released time 	for preparation 	if 	he
did not 	see more counters, 	written proposals 	and productive use
of negotiating time. 	On August 	8, 	CSEA gave the 	state a new
proposal 	on grievance procedures; 	it also 	submitted a 	revised
election leave proposal on August 	14. 	After the August 	14
session, 	Wheatley 	spoke with 	McWilliam about 	eliminating 	released
time 	for days 	other 	than bargaining 	sessions 	in Unit 	1.34
McWilliam told Wheatley 	that 	the 	decision was 	up 	to 	him.
On August 	21, 	the union team gave the 	state a new NDI
proposal. 	At the end of the day, 	Wheatley told the Unit 	1 	team
that 	released time 	for preparation would cease, 	beginning the
31These included discipline, 	steward release time, union
rights/distribution of 	literature, 	indoor air quality, 	industrial
disability leave (IDL), discrimination, 	layoffs, 	catastrophic
leave 	and 	special 	salary 	or 	inequity 	adjustments.
32These included the preamble; 	recognition; 	union
representation rights; 	organizational 	security; 	state's rights;
article 	5/general provisions; 	and permanent 	intermittent
employment.
33Among the topics were IDL; 	performance standards; 	and
permanent 	intermittent 	employment.
34Wheatley and McWilliam did not discuss past 	Unit 	1
negotiations, 	practices 	or coalition ground rules.
11
14

following week, 	due to the 	lack of bargaining progress 	and
proposals; 	released time 	for preparation would be 	allowed 	on
August 22, 	however, 	because August 23 bargaining was already
scheduled. 	Wheatley 	informed 	the 	team that 	released 	time would
continue 	for all negotiations. 	Duffy objected; 	she 	argued that
CSEA had a right to present 	its 	case, 	the 	issues 	required
research, 	the parties needed more time, 	and the Unit 	1 	team was
entitled to 	released time under the 	Dills Act. 	Duffy 	requested
union 	leave 	for the 	team on nonbargaining days. 	Wheatley 	agreed
to 	consider 	it.
The 	next day, 	Wheatley advised Duffy that 	the 	ground rules
did not 	allow union leave 	for preparation. 	On August 	26, 	the
parties 	again discussed 	released 	time 	for 	activities 	other 	than
face-to-face 	negotiations. 	Wheatley rejected the union's 	request
for 	continued released 	time 	on nonbargaining days.
Wheatley 	admitted 	that 	he 	did 	not 	negotiate with 	CSEA 	over
the 	decision to grant full-time released 	status 	in July, 	or to
eliminate 	released 	time 	for preparation 	effective August 	26.
CSEA 	filed this 	charge 	four days 	later.
The Unit 	1 	teams 	continued bargaining. 	As of the end of
August, 	there were no tentative agreements.35 After August, 	the
union made 	no 	new major proposals 	although 	it gave 	the 	employer
two minor proposals; 	the 	state gave the union new, 	although
35Unit 	1 policy, 	followed 	in and communicated to the 	state
in past 	and 	current 	negotiations, 	would not 	tentatively 	agree 	to
any 	one 	subsection absent 	agreement 	on the 	entire 	article. 	The
parties 	had reached conceptual 	agreement on many 	items, 	however.
15

minor, 	revisions 	on grievance procedures, 	furloughs 	and union
representation rights. 	CSEA presented a written 	list 	of 	classes
proposed 	for 	inequity or 	special 	salary adjustments 	in 	September.
Wheatley 	sent the 	state's 	last, 	best and 	final 	offer to
Duffy on September 	27. 	On October 	10, 	Wheatley requested PERB 	to
declare 	impasse and appoint a mediator in Unit 	1 	negotiations.
PERB 	found 	an 	impasse 	and 	appointed 	a 	mediator on October 	18.
According 	to 	Hackett, 	when released 	time 	for preparation was
eliminated, 	CSEA was unable to counter the 	state proposal 	for a 	5
percent 	salary reduction, 	although 	the 	team verbally rejected 	it.
The union also 	could not 	counter the 	state proposals 	on 	IDL;
health benefits; 	several health and 	safety items; 	employee
transfers; 	allowances; 	and alternative transportation. 	The
unit 	1 	team 	further 	could not develop 	and present 	its 	own
proposals over layoff, 	performance standards, 	and NDI.
Hackett 	explained why 	released 	time 	for preparation 	is
essential to Unit 	1 	bargaining. 	The unit 	is very 	large and
diversified.36 Expert witnesses 	are 	also 	required 	on many
issues: 	out-of-class work; 	special 	salary adjustments; 	workweek
groups; 	permanent intermittent employment; 	bonuses; 	job
classifications; 	travel; 	and apprenticeship programs. 	Three team
members 	had to travel to 	Sacramento, 	and the team needed to
caucus after negotiations. 	Finally, 	Unit 	1 	employees also are
36For example, 	a 	statewide grievance on special 	salary
adjustments was 	filed under the 	1989-91 	Unit 	1 	contract which
affected 	2,800 	employees.
16
' &.

very 	interested 	in, 	and wish to participate 	and receive updates
on the progress 	of bargaining.
According to Wheatley, 	the 	size of 	the unit by 	itself has 	no
direct 	impact 	on the 	ability 	to prepare 	bargaining proposals 	and
counters. 	Instead, 	the nature of the proposal, 	including cost
factors 	and 	the 	source 	and 	availability 	of 	information to 	justify
and 	support 	it, 	must be 	considered. 	Rollover proposals 	including
minor variations 	in language, 	but retaining the essential
concept, 	could 	and were 	countered 	immediately.
ISSUES
1. 	Did the 	state employer unilaterally change 	its
released 	time policy, 	and thereby 	fail 	to 	negotiate 	in good 	faith
in violation of 	Dills Act 	section 	3519(c) 	when it 	eliminated
released 	time 	for preparation between bargaining 	sessions
effective August 26, 	1991?
2. 	Did 	the 	state 	employer unreasonably deny 	released 	time
to 	the 	union negotiating 	team 	in violation of 	Dills 	Act 	section
3518.5?
3. 	Did the 	state 	employer's 	conduct 	independently violate
the rights 	of CSEA, 	the Unit 	1 	team members 	and Unit 	1 	employees
under Dills Act section 3519(b) 	and 	(a), 	respectively?
CONCLUSIONS 	OF 	LAW
The 	complaint 	alleges 	that 	the 	state 	employer 	failed 	to
bargain 	in good 	faith when 	it 	changed 	established policy by
refusing 	to 	grant 	released 	time between bargaining 	sessions 	for
preparation without 	negotiating with CSEA over 	the 	decision
.- ? :
17

and/or effects 	of 	the change. 	It 	charges 	a violation of 	Dills
Act section 	3519(c), 	but 	does 	not 	allege 	a 	failure 	to participate
in the 	statutory 	impasse procedure 	in good 	faith, 	a 	separate
violation of 	Dills Act 	section 	3519(e). 	The alleged unilateral
change 	occurred before 	the 	statutory 	impasse procedures 	while 	the
parties were 	negotiating a 	successor agreement. 	The parties 	also
presented 	evidence 	establishing 	that 	the 	state 	requested 	PERB 	to
declare 	impasse; 	PERB 	found a bargaining 	impasse 	and 	appointed a
mediator; 	and mediation was 	invoked while the denial 	of 	state
released time 	for preparation continued. 	Accordingly, 	a Dills
Act 	section 	3519(e) 	claim of refusal 	to participate 	in the
statutory 	impasse procedures 	in good 	faith 	is 	also presented.
(Moreno Valley 	Unified 	School 	District v. 	PERB 	(1983)
142 Cal.App.3d 	191, 	200-202 	[191 Cal.Rptr. 	60]; 	Charter Oak
Unified School District 	(1991) 	PERB Decision No. 	873; 	Temple City
Unified School District 	(1990) 	PERB Decision No. 	841; 	Santa Clara
Unified School District 	(1979) 	PERB Decision No. 	104.)37
The 	Dills 	Act 	requires 	the 	state 	employer and 	an exclusive
representative 	to 	meet 	and 	confer 	in good 	faith with 	each 	other
on matters within the 	scope of representation. 	In addition, 	the
Dills Act 	requires 	the 	state 	employer to 	give 	employee
organizations 	an opportunity 	to 	meet 	and 	confer 	regarding 	any
37Under 	section 3518 of the Dills Act, 	impasse resolution is
limited 	to mediation and there 	is 	no provision 	for 	factfinding.
The parties 	may mutually agree 	on a mediator or request PERB 	to
determine the 	existence of 	an 	impasse 	and 	appoint 	a mediator.
(PERB Reg. 	32791 	(tit. 	8, 	Cal. 	Code of Regs., 	sec. 	32791).) 	If
PERB appoints 	the mediator, 	PERB pays 	the mediation costs.
18

law, 	rule, 	resolution or regulation that it proposes to adopt,
which directly 	relates 	to matters within the 	scope 	of 	bargaining.
(Secs. 	3516.5, 	3517.) 	The obligation imposed by the Dills Act
requires 	both parties 	to 	negotiate 	and discuss 	each 	other's
proposals, 	engage 	in good 	faith efforts 	to reach agreement 	on
subjects within the 	scope of 	representation, 	and to reduce those
agreements to writing upon request. 	(Secs. 	3517, 	3517.5.) 	The
Dills Act also 	obliges 	the parties 	to provide 	adequate 	time 	to
reach agreement, 	including the resolutions of 	impasses. 	(Sec.
3517.)
Released time 	is 	a 	negotiable 	subject under the 	Educational
Employment 	Relations 	Act 	(EERA).38 EERA 	section 	3543.2 	provides,
in part, 	that the 	scope of representation shall be 	limited to
matters 	relating to wages, 	hours 	of 	employment and other terms
and 	conditions 	of 	employment. 	The Board has held that 	released
time 	is 	related to the 	enumerated 	subjects 	of wages 	and hours,
and 	is well-suited 	to the 	"mediatory 	influence 	of 	negotiations"
for 	resolution of 	disputes. 	(Willits 	Unified 	School 	District
(1991) 	PERB Decision No. 	912; 	Compton Community College District
(1990) 	PERB Decision No. 	790; 	San Mateo City School District et
al. 	(1984) 	PERB Decision No. 	375; 	Anaheim Union High School
District 	(1981) 	PERB Decision No. 	177; 	Jefferson School District
(1980) 	PERB Decision No. 	133.)
38EERA is codified at Government Code section 3540 et seq.
and 	is 	also 	administered by PERB.
19

Section 	3516 	of 	the 	Dills Act 	is 	virtually 	identical 	to 	EERA
'Msection 	3543.2, 	stating that the 	scope of 	representation 	shall be
limited to wages, 	hours 	and other terms 	of 	conditions 	of
employment.
39
The 	Board has 	recently 	concluded 	that 	released
time 	is within the 	scope of 	representation of the Dills Act.
(Professional 	Engineers 	in California Government 	(1991) 	PERB
Decision No. 	900-S.)
The 	duty 	to 	bargain 	requires 	both 	labor and management 	to
refrain 	from taking 	any 	unilateral 	action that would 	effectuate 	a
change 	in a mandatory 	subject 	of 	bargaining until 	each has 	given
the 	other 	side 	notice 	and 	an adequate 	opportunity 	to 	negotiate.
If 	negotiations 	are requested, 	unilateral 	changes 	cannot be
implemented 	until 	the parties 	have 	either 	reached 	agreement 	or
impasse 	after 	exhausting 	the 	statutory 	impasse 	resolution
procedures. 	(PERB v. 	Modesto City School 	District 	(1982)
136 Cal.App.3d 881, 	900 	[186 Cal.Rptr. 	634]; 	National Labor
Relations Board v. 	Katz 	(1962) 	369 U.S. 	736, 	745 	[8 L.Ed.2d
230].)
Absent waiver, 	the negotiating obligation is 	continuous,
binding both parties 	during 	the 	bargaining process 	throughout 	the
life of 	the agreement, 	after expiration of 	the contract and until
all 	impasse procedures 	have been exhausted. 	(Placentia 	Unified
School District 	(1986) 	PERB Decision No. 	595; 	Modesto City
, Neither party 	is 	obliged 	to 	negotiate 	over 	subjects
outside the 	scope of 	representation. 	(State of California
(Department of Personnel Administration) 	(1987) 	PERB Decision
No. 	648-S).
I
20

Schools 	(1983) 	PERB Decision No. 	291.) 	The duty to bargain must
be 	fulfilled before the 	employer may 	implement 	its 	last, 	best 	and
final offer. 	(Temple City Unified School 	District, 	supra. 	PERB
Decision No. 	841.)
Unilateral 	Change
Because 	the 	Dills Act 	is 	designed to 	foster the 	negotiating
process, 	a preimpasse unilateral change 	in an established
negotiable practice, 	absent a valid defense, 	is a per se
violation of 	the duty to bargain under the 	Dills Act 	section
3519(c). 	(NLRB v. 	Katz, 	supra. 	369 U.S. 	736 	[8 L.Ed.2d 230];
State of California 	(Department of Transportation) 	(1983) 	PERB
Decision No. 	361-S; 	San Francisco Community College District
(1979) 	PERB Decision No. 	105.) 	When unilateral changes 	are
implemented during the 	statutory 	impasse procedures, 	Dills 	Act
section 	3519.5(e) 	is 	violated. 	(Moreno Valley Unified School
District, 	supra. 	142 Cal.App.3d 191 	[191 Cal.Rptr. 	60];4 0 Temple
City Unified School District, 	supra, 	PERB Decision No. 	841.)
To 	establish a unilateral 	change, 	a 	charging party must 	show
that: 	(1) 	the respondent has changed the status quo; 	(2) 	the
exclusive 	representative was 	not 	given notice 	or 	an opportunity
to bargain; 	(3) 	the breach or alteration was not isolated, 	but
amounted to a 	change of policy, 	having a 	generalized effect 	or
continuing 	impact 	on the 	terms 	and 	conditions 	of 	employment 	of
40Dills Act 	section 	3519(e) 	and EERA section 	3543.5(e) 	are
virtually 	identical 	in making 	it unlawful 	for 	an 	employer 	to
refuse to participate 	in good 	faith 	in the 	impasse 	resolution
procedures 	set 	forth 	in the respective 	statutes.
21

bargaining unit members; 	and 	(4) 	the change 	in policy concerns
matters within the 	scope 	of 	representation. 	(Grant Joint 	Union
High School 	District 	(1982) 	PERB Decision No. 	196.) 	Established
policy may be 	reflected 	in the 	agreement 	(Grant 	Joint 	Union 	High
School District, 	supra), 	bargaining history 	(Colusa Unified
School District 	(1983) 	PERB Decision Nos. 	296 and 296a), 	or past
practice 	(Rio 	Hondo Community College 	District 	(1982) 	PERB
Decision No. 	279; 	Pajaro Valley Unified School District 	(1978)
PERB Decision No. 	51.)
The 	employer's 	lack of 	subjective bad 	faith 	in making
unilateral 	changes 	is 	immaterial; 	the change itself has 	a
destablizing 	and 	disorienting 	impact 	on 	employer/employee
relations, 	derogates 	employee 	freedom of 	choice 	in selecting an
exclusive 	representative 	and 	promotes 	bargaining 	inequality 	which
is 	inconsistent with the 	statutory design. 	(Davis 	Unified 	School
District et al. 	(1980) 	PERB Decision No. 	116; 	San Mateo County
Community College 	(1979) 	PERB Decision No. 	94.) 	Offering to
negotiate 	after 	the 	changes 	have 	been 	implemented does 	not 	cure
the prior 	conduct 	since 	the 	employer's 	fait 	accompli 	makes 	the
give 	and 	take 	of 	labor negotiations 	impossible. 	(San Francisco
Community College District, 	supra	
- , 	PERB Decision No. 	105.)
A unilateral 	change, 	however, 	does 	not occur where the
action taken by the 	employer does 	not alter the 	status 	quo. 	"The
'status quo' 	against which an employer's 	conduct is 	evaluated
must 	take 	into 	account 	the 	regular 	and 	consistent past patterns
of 	changes 	in the 	conditions 	of 	employment." 	(Pajaro Valley
1 1
22
,,

Unified School District, 	supra, 	PERB Decision No. 	51.) 	Where the
employer 	acts 	consistently with past practice, 	no violation may
be 	found 	in a 	change that did not alter the 	status 	quo. 	(Oak
Grove School District 	(1985) 	PERB Decision No. 	503.) 	Charging
Party bears 	the burden of proving 	the 	change 	in past practice 	or
established policy. 	(Ibid.)
The 	state argues 	that 	it met 	its 	statutory notice 	and meet
and 	confer 	obligations when Wheatley gave 	three 	days 	advance
notice 	to 	the 	Unit 	1 	team that 	released time 	for preparation
would end the 	following week, 	and considered, 	but rejected, 	the
union's 	request 	to 	retain 	full-time 	released 	status. 	This
contention 	is 	rejected. 	Wheatley candidly admitted that 	he did
not 	negotiate with 	the union over the decision to 	grant 	or
eliminate 	released 	time 	for preparation during Unit 	1 	bargaining.
CSEA 	certainly did 	not 	agree 	to 	any 	limitation on 	released 	time.
Thus, 	the question is whether the 	state employer made a
unilateral 	change when 	it 	restricted 	released 	time 	to 	negotiating
days effective August 26, 	1991, 	in Unit 	1 bargaining. 	The answer
lies 	in determining the 	nature 	of 	the 	status 	quo before 	the 	state
limited 	the 	released 	time 	available 	to 	the union team.
The 	state 	asserts 	that 	the 	language of 	the 	negotiated 	1991
ground rules 	is 	dispositive.41 CSEA responds 	that 	the 	ground
rules 	are 	not 	controlling 	because 	the practice 	of 	released 	time
for preparation and bargaining days 	on a 	one-to-one 	ratio
41The 	1989-91 	Unit 	1 	contract 	contained no 	language on
released 	time 	for 	negotiating 	a 	successor 	contract.
23

remained 	intact 	over three 	successor contract 	negotiations. 	The
analysis 	properly begins 	with 	the 	ground rules 	agreements.
The May 	18, 	1987, 	ground rules 	specifically authorized
released 	time 	for both bargaining and preparation, 	and 	further
attached a 	schedule of 	11 	dates 	on which the Unit 	1 	team was
released. 	The April 25, 	1988, 	ground rules 	removed preparation
from released time, 	but also attached a 	schedule of 	negotiating
sessions 	of two 	consecutive days, 	one 	for bargaining and one
open, 	every other week, 	with both days on released time. 	The
May 22, 	1991, 	ground rules contained the same language as the
1988 	ground 	rules, 	providing released time 	only 	for negotiating,
but did not attach a 	schedule 	for Unit 	1 	bargaining, 	unlike 	the
past two ground rules. 	Furthermore, 	CSEA specifically proposed
that 	released 	time 	include preparation and 	travel 	before 	the
single 	negotiating 	session on ground rules, 	but 	this 	language was
not 	included 	in the 	final 	agreement 	signed by the parties.
The 	1987 	ground rules 	demonstrate 	that 	the parties 	knew how
to 	include preparation within 	the 	authorized 	released 	time
provisions. 	All 	three ground 	rules 	prohibited released time 	for
travel 	from the worksites 	of the three Unit 	1 	team members
located outside 	Sacramento. 	All 	three 	ground rules 	described
caucus 	time 	separately 	from released 	time. 	Notwithstanding
CSEA's 	honestly 	held definition of 	"negotiating 	session" 	to
include preparation,
A 9
caucusing and travel, 	the plain language
42CSEA witnesses 	used 	the 	terms 	"preparation" 	and
"caucusing" 	interchangeably, 	over the 	state's 	objection as 	an
expansion of 	the 	complaint.
24

of 	the 	1991 	ground rules 	does 	not authorize 	released 	time 	for
these purposes.
The 	union 	correctly 	contends 	that 	the 	ground 	rules
language does 	not 	end the 	inquiry. 	This 	is because the 	evidence
clearly demonstrates 	that 	the 	parties 	frequently 	deviated 	from
the ground rules. 	The 	scheduling of 	negotiating 	sessions,
including any released time, 	was 	up to the 	chief negotiators.
The 	60-minute 	caucus 	limitation was 	exceeded routinely. 	The
state 	granted 	continuous 	released 	time 	to 	the 	union team when an
agreement 	seemed near.43
Although Wheatley 	claimed 	that 	he 	followed 	the 	ground 	rules,
he 	significantly departed 	from them 	in releasing 	the 	Unit 	1 	team
five days 	a week after July 	3. 	This 	arrangement 	far 	surpassed
the 	released 	time 	in prior years 	of 	one day 	for bargaining 	and
one 	for preparation or open, 	on a weekly basis 	or every other
week. 	In addition, 	the CSEA Unit 	1 	team used union leave 	for
preparation 	in May 	and June 	after 	the 	ground rules were 	signed,
unlike past 	negotiations 	when released 	time 	away 	from 	the 	table
began 	concurrently with bargaining, 	even though 	the 	contract(s)
had 	not 	expired.
The 	key 	to 	solving the past practice puzzle 	is 	the mutual
consent of the Unit 	1 	chief negotiators. 	The ground rules
provided a 	floor, 	not a ceiling, 	for released time and other
matters. 	This 	is 	likely a result of the parties' 	bargaining
43The parties were not 	close to a 	final 	agreement as 	of
August 	21 	to 	invoke 	the 	continuous 	released time 	afforded 	in
prior years.
25

history. 	Despite comprehensive ground rules, 	not every aspect of
a 	particular 	negotiation 	can be 	anticipated 	in 	coalition 	ground
rules 	applying to eight or nine bargaining units. 	Thus,
departures 	from the 	ground 	rules 	occurred 	routinely by 	assent 	of
the 	chief union and 	state 	negotiators. 	So 	long as 	both 	sides
agreed, 	there were no disputes. 	This 	case apparently presents
the 	first 	such 	controversy.
It 	is 	concluded 	that 	the past practice was 	the 	negotiated
ground rules 	agreement, 	plus 	any deviation(s) 	worked out between
the chief negotiators 	for the unit(s), 	so long as the negotiators
remained 	in agreement. 	When Wheatley 	informed CSEA that 	he would
no 	longer give unlimited released time to 	the Unit 	1 	team, 	there
was 	no 	longer mutual 	consent to 	alter the 	ground rules 	so 	as 	to
allow released time 	for non-negotiating days, 	or 	for CSEA to 	use
union leave 	as 	agreed in past years when McWilliam was 	the Unit 	1
negotiator. 	At that point, 	the ground rules governed Unit 	1
negotiations 	and 	limited released time 	to negotiating days. 	No
past practice was 	created by the 	full-time 	release of 	Unit 	1
members 	in July and most of August, 	since this 	status 	exceeded
the 	scheduled 	one-to-one 	bargaining-nonbargaining days 	of
released 	time afforded 	in 	1987 	and 	1988.
-
. .
26

Denial 	of 	CSEA's 	Statutory 	Rights
As 	a 	separate 	claim, 	CSEA alleges 	that 	the 	state denied 	its
rights 	to 	reasonable 	released 	time 	under 	Dills 	Act 	section 	3518.5
by eliminating preparation time after August 26, 	1991, 	in Unit 	1
negotiations. 	The 	state 	objects 	procedurally to 	consideration of
this 	issue as not included 	in the complaint. 	On the merits, 	the
state argues 	that the released time given to Unit 	1 	members 	met
the 	statutory 	standard.
In Magnolia School District 	(1977) 	EERB44 Decision No. 	19,
the 	Board discussed 	the policy underlying 	the 	right 	to 	reasonable
released time in EERA section 3543.l(c).45
"Reasonable released time" 	means, 	at least,
that 	the 	District 	has 	exhibited 	an open
attitude 	in its 	consideration of 	the 	amount
of 	released time 	to be 	allowed 	so that 	the
amount 	is 	appropriate to 	the 	circumstances
of the negotiations. 	The District may have
to 	readjust 	its 	allotment 	of 	released time
based upon the reasonable needs 	of the
District, 	the number of hours 	spent in
negotiations, 	the number of 	employees on
the 	employee 	organization's 	negotiating 	team,
the progress 	of the negotiations 	and other
relevant 	factors. 	A district's 	policy does
not provide 	for reasonable periods 	of
released 	time 	if 	the policy 	is 	unyielding
to 	changing circumstances,
(rd. 	at p. 	5.)
44Prior to January 	1, 	1978, 	PERB was known as the Educa-
tional 	Employment 	Relations 	Board.
45EERA section 3543.l(c) 	states:
A 	reasonable 	number 	of 	representatives 	of 	an
exclusive 	representative 	shall 	have 	the 	right
to 	receive 	reasonable periods 	of 	released
time without 	loss 	of 	compensation when
meeting 	and 	negotiating 	and 	for 	the
processing of 	grievances.
27
---------- -- --

- -
- -
The 	Board 	later rejected 	a 	narrow construction 	of 	EERA 	section
3543.l(c), 	concluding that 	"meeting and negotiating" 	is not
limited 	to 	direct 	negotiating 	sessions. 	(Sierra Joint Community
College District 	(1981) 	PERB Decision No. 	179.)
So 	narrow a construction of 	the 	statutory-
language 	is unwarranted. 	In our view,
the phrase 	is 	intended to permit 	teacher
negotiators 	to 	receive 	released 	time 	for
periods 	spent 	in the negotiating process.
How much of this 	total 	time 	span is 	subject
to the requirement of 	section 3543.1 	depends,
of course, 	on what is 	"reasonable." 	But we
find 	in this 	section no 	requirement 	that 	the
time 	employees 	are 	excused 	from duty without
loss 	of 	compensation must precisely 	coincide
with 	time 	actually 	spent 	negotiating,
at p. 	5.)	(Id.
The 	Board has 	also 	commented that 	in EERA, 	the 	Legislature
declined 	to 	leave 	released 	time 	either 	to 	the 	employer's
discretion or 	entirely to the vagaries 	of 	negotiations. 	Instead,
". 	. 	.a minimum released-time standard was established, 	. 	. 	.
against which the parties' 	good 	faith 	in negotiating on the
subject 	could be 	measured." 	(Anaheim Union High 	School 	District.
supra. PERB Decision No. 	177, p. 	11.)
Whether the amount of 	released time 	is 	reasonable 	is 	a
question of 	fact 	to be determined on a 	case-by-case basis.
Sierra Joint Community College District, 	supra, 	PERB Decision
No. 	179, 	p. 	7.) 	The Board did not define the 	"minimum released-
time 	standard" 	in Anaheim Union High School 	District 	supra, 	PERB
Decision No. 	177, 	and has 	not held that a particular refusal to
grant 	released 	time denied 	rights 	to 	an 	exclusive 	representative.
PERB 	decisions 	have 	evaluated 	a 	specific 	denial 	of 	released 	time
28

against the minimal 	standard, 	using two approaches: 	(1) 	the
history of the negotiations, 	or 	(2) 	an objective 	"patently
unreasonable" 	standard. 	(Willits 	Unified 	School 	District 	(1991)
PERB Decision No. 	912, 	adopting proposed d e c , 	p. 	24.)
.
A 	"history of 	the 	negotiations" 	analysis was 	used 	in Muroc
Unified School District 	(1978) 	PERB Decision No. 	80. 	At 	issue
was 	the 	number of 	negotiators 	to be 	granted 	released 	time. 	The
Board 	identified 	several 	factors: 	complexity of 	negotiations;
reasonable 	needs 	of 	the 	employee 	organization to 	include
representatives 	of 	various 	groups 	on their 	negotiating 	team;
number of hours 	spent in negotiations; 	size of the district; 	and
geographical 	dispersement of 	facilities.
A 	"patently unreasonable" 	standard was 	suggested 	in 	Burbank
Unified School District 	(1978) 	PERB Decision No. 	67. 	This 	case
involved denial 	of 	released 	time 	for rest 	and 	recuperation 	on the
day after negotiations 	proceeded 	late 	into 	the 	night. 	Although
the 	Board 	found 	that 	the 	employer did 	not 	unreasonably 	expect
employees 	to return to work, 	it observed:
Such 	a 	situation would 	occur when 	it would be
patently unreasonable, 	given the 	legislative
intent 	to 	limit 	the burden on 	employee
representatives, 	to force employee
organization negotiating 	team members 	to
choose 	between working 	after 	the 	negotiating
session ends 	or 	losing pay or 	sick leave.
However, 	such circumstances are rare,
(Id. 	at p. 	5.)
The parties 	are 	free to negotiate released 	time 	provisions
which 	are broader 	than the 	statutory 	standard. 	(Gilroy 	Unified
School District 	(1984) 	PERB Decision No. 	471.) 	After a
29

declaration of impasse by PERB, 	however, 	the parties have no
obligation to meet 	and negotiate 	outside 	the presence 	of 	the
appointed mediator, 	and the 	employer therefore 	is 	not 	required 	to
grant 	released time 	except 	for bargaining with 	the 	mediator.
(Victor Valley Union High 	School 	District 	(1986) 	PERB Decision
No. 	565.)
The 	Board has 	not 	interpreted Dills Act 	section 	3518.5. 	The
statutory 	released 	time provision 	for 	negotiating4 6 is 	similar 	to
that of EERA, 	with one exception: 	the right applies 	only for
periods when a contract 	is not 	in effect. 	Here, 	released time
for preparation was 	granted, 	and 	subsequently revoked, 	after the
Unit 	1 agreement officially expired on June 30, 	1991, 	so as to
apply the 	statute.
The 	EERA-based 	cases 	are 	useful 	in analyzing whether the
state denied CSEA reasonable released time. 	Unit 	1 	is 	obviously
a 	large 	and 	complex 	bargaining unit, 	involving many 	negotiating
issues, 	as 	demonstrated by the 	comprehensive 	1987-88 	and 	1989-91
contracts. 	CSEA also asserts 	that 	its 	1991 	six-member team 	is
only one-third the 	size of 	its 	teams 	in the two prior
negotiations. 	The state, 	however, 	had six negotiators as well.
In addition, 	the union has 	not 	shown that the 	state played any
46The 	Dills 	Act 	refers 	to 	"formally meeting 	and 	conferring"
while 	EERA 	specifies 	"meeting 	and 	negotiating." 	In addition,
EERA 	section 	3543 	and 	section 	3569 	of 	the 	Higher 	Education
Employer-Employee 	Relations Act 	(HEERA) 	specifically grant
reasonable 	released time 	for the processing of 	grievances. 	Dills
Act 	section 	3518.5 	is 	silent on this point.
•
30

role 	in 	limiting the 	size of 	its 	team, 	and the ground rules 	allow
CSEA to 	select 	the 	employees 	on released time.
The union 	further 	contends 	that preparation time 	is 	required
because 	three of 	the 	1991 	Unit 	1 	team members 	are 	located outside
of 	Sacramento. 	The 	last 	three negotiated 	ground rules 	have
addressed travel 	separately 	from released 	time, 	and 	limited
travel 	to the 	employees' 	time unless 	they worked 	in designated
cities. 	Although the remote 	locations 	permitting travel 	on
release 	time were 	expanded 	in each 	ground rules 	agreement, 	the
three members' 	worksites 	have been excluded consistently. 	It
cannot 	be 	concluded 	that 	this 	arrangement 	violated 	the 	statutory
standard 	of 	reasonable 	released 	time.47
Released 	time 	for preparation 	cannot 	be viewed 	in a 	vacuum.
Instead, 	it must be 	considered 	in context with the 	released 	time
afforded 	for direct negotiations 	as part of 	a total package. 	The
fact 	is 	that the released time received by the Unit 	1 	team in
1991 	far 	surpassed 	its 	released time 	in the 	two prior
negotiations. 	In 	1987, 	the union team received 	11 days of
released time: 	four bargaining, 	four preparation, 	and three
additional days. 	In 	1988, 	the team received either 20 days 	(ten
bargaining and ten open) 	or 	18 	days 	(nine bargaining and nine
open) 	of 	released time, 	depending upon when bargaining began. 	In
1991, 	the negotiators were granted released time 	for every
bargaining 	session 	except 	two 	before 	the 	ground 	rules 	were
47Compare Regents 	of 	the 	University of 	California 	(1987)
PERB Decision No. 	640-H, 	where the negotiated ground rules
specifically 	included 	"reasonable 	travel 	time" 	on released 	time.
31
',;,

signed. 	As 	of the close of the record, 	41 	days of released time
had been afforded to 	the 	Unit 	1 	team members 	for bargaining,
including 	four with a mediator. 	Eighteen additional days 	of
preparation 	on 	released 	time were 	granted 	to 	the 	team during 	July
and August. 	Thus, 	a total of 	5 9 days on released time had been
given to 	each of 	the 	five 	team members. 	Under 	either the history
of 	negotiations 	or patently unreasonable 	standard, 	and the
particular 	facts 	of 	this 	case, 	it 	cannot be 	concluded that 	the
state denied reasonable 	released time 	to CSEA and 	its 	Unit 	1
negotiators.
CONCLUSION
Charging 	Party has 	not 	established 	an unlawful 	unilateral
change and/or denial 	of 	its 	statutory rights 	to 	released time 	in
Unit 	1 	successor contract negotiations with the 	state 	in 	1991.
The past practice was 	the 	negotiated 	ground rules 	and 	any
mutually agreed-upon departure(s) 	so 	long as the 	chief
negotiators 	continued to agree. 	The reasonable released 	time
standard of 	Dills Act 	section 	3518.5 was 	not violated by 	the
negotiated ground rules 	and Unit 	1 	team members 	received more
released time 	in 	1991 	than 	in prior negotiations.
Charging Party has 	failed to prove, 	by a preponderance of
the 	evidence, 	a prima 	facie case of the 	state 	employer's 	refusal
to bargain under Dills Act 	section 3519(0), 	failure to
participate 	in 	the 	statutory 	impasse procedures 	under 	section
3519(e) 	and denial 	of the exclusive representative's 	rights 	to
reasonable 	released time under 	section 	3518.5. 	Since 	no
32

bargaining violations 	have been established, 	the 	independent
section 	3519(a) 	(interference with bargaining unit 	employees'
rights 	to be represented by CSEA) 	and 	section 	3519(b) 	(denial 	of
representation rights 	to CSEA) 	violations 	based on the 	same 	facts
must 	also be 	dismissed.
PROPOSED 	ORDER
Based upon the 	foregoing 	findings 	of 	fact 	and 	conclusions 	of
law and the 	entire record in this 	matter, 	the unfair practice
charge no. 	S-CE-522-S 	and 	its 	companion complaint 	entitled
California State Employees Association 	(CSEA) 	v. 	State of
California 	(Department 	of 	Personnel Administration) 	are 	hereby
DISMISSED.
Pursuant to California Code of Regulations, 	title 	8,
section 	32305, 	this 	Proposed Decision and Order 	shall become
final 	unless 	a party 	files 	a 	statement of 	exceptions 	with the
Board 	itself 	at 	the headquarters 	office 	in Sacramento within 	20
days 	of 	service of 	this 	Decision. 	In accordance with PERB
Regulations, 	the 	statement of 	exceptions 	should 	identify by page,
citation or 	exhibit number the portions 	of 	the record, 	if 	any,
relied upon for such exceptions. 	(See Cal. 	Code of Regs.,
tit. 	8, 	sec. 	32300.) 	A document is considered 	"filed" when
actually received before the 	close of business 	(5 p.m.) 	on the
last day 	set for filing 	". 	. 	. o r when sent by telegraph or
certified or Express 	United States 	mail, 	postmarked not 	later
than the 	last day 	set 	for 	filing 	. . . " 	(See Cal. 	Code 	of 	Regs.,
tit. 	8, 	sec. 	32135; 	Code Civ. 	Proc., 	sec. 	1013 shall apply.) 	Any
74 . 27: . . ... '
33

statement 	of 	exceptions 	and 	supporting brief 	must be 	served
concurrently with 	its 	filing upon 	each party to 	this 	proceeding.
Proof 	of 	service 	shall 	accompany 	each 	copy 	served on a 	party 	or
filed with the Board itself. 	(See Cal. 	Code of Regs., 	tit. 	8,
secs. 	32300, 	32305 and 32140.)
Dated: 	February 	19, 	1992 	Christine A. BolognaChristine A. 	Bologna
Administrative 	Law Judge
34
·_;-·