State of California (Department of Transportation) (PERB 1049S)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
INTERNATIONAL 	UNION 	OF
OPERATING ENGINEERS, 	CRAFT-
MAINTENANCE DIVISION, 	UNIT 12,
Charging 	Party,
v.
STATE OF CALIFORNIA 	(DEPARTMENT
OF TRANSPORTATION),
Respondent.
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) 	Case No. 	S-CE-693-S
PERB Decision No. 	1049-S
June 	2, 	1994
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Appearances; 	Van Bourg, 	Weinberg, 	Roger & Rosenfeld by
William A. 	Sokol, 	Attorney, 	for International Union of Operating
Engineers, 	Craft-Maintenance Division, 	Unit 12; 	State of
California 	(Department 	of 	Personnel 	Administration) 	by Roy J.
Chastain, 	Labor Relations Counsel, 	for State of California
(Department of Transportation).
Before Blair, 	Chair; 	Caffrey, 	Garcia and Johnson, 	Members.
DECISION AND 	ORDER
CAFFREY, 	Member: 	This 	case 	is before the Public Employment
Relations 	Board 	(Board) 	on appeal 	by 	the 	International 	Union of
Operating Engineers, 	Craft-Maintenance Division, 	Unit 	12 	(IUOE)
of a Board agent's 	dismissal 	(attached hereto) 	of 	its unfair
practice 	charge. 	In its 	charge, 	IUOE alleged that 	the State of
California, 	Department 	of Transportation 	(State) 	violated section
3519(a), 	(b) 	and 	(d) 	of the Ralph C. 	Dills Act 	(Dills Act) 	by
denying 	to a member of 	IUOE his 	right 	to 	representation.1
1The Dills 	Act 	is 	codified at 	Government 	Code 	section 	3512
et 	seq. 	Section 3519 	states, 	in pertinent part:
It 	shall be unlawful 	for the 	state to do any
of 	the 	following:
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(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.
(b) 	Deny to employee organizations 	rights
guaranteed 	to 	them by 	this 	chapter.
(d) 	Dominate or 	interfere with the 	formation
or administration 	of 	any 	employee
organization, 	or contribute 	financial 	or
other support 	to 	it, 	or in any way encourage
employees 	to 	join any 	organization 	in
preference 	to another.
The 	Board has 	reviewed 	the 	Board agent's 	warning and
dismissal 	letters, 	IUOE's appeal, 	the State's response and the
entire 	record 	in this 	case. 	The Board 	finds 	the warning and
dismissal 	letters 	to be 	free 	of prejudicial 	error and adopts 	them
as 	the decision of 	the Board 	itself.
The unfair practice 	charge 	in Case No. 	S-CE-693-S 	is 	hereby
DISMISSED WITHOUT LEAVE 	TO AMEND.
Chair Blair and Member Johnson joined 	in 	this 	Decision.
Member Garcia's 	dissent begins 	on page 	3.
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GARCIA, 	Member, 	dissenting: 	This 	case should be placed in
abeyance 	pending 	exhaustion of 	the 	contractual 	grievance
machinery. 	My reasons 	follow.
In 	the warning 	letter, 	adopted by 	the majority as 	the
decision 	of 	the 	Public 	Employment 	Relations 	Board 	(PERB 	or Board)
itself, 	the Board agent 	correctly states 	that 	section 3514.5(a)
of the Ralph C. 	Dills Act 	(Dills Act),1 PERB Regulation
32620(b) (5)2 and Lake Elsinore School District 	(1987) 	PERB
Decision No. 	646 	(Lake Elsinore) 	require this 	case 	to be
dismissed and deferred to arbitration. 	(Warning 	letter,
pp. 2 - 3.)
The 	clear language 	of Dills Act 	section 3514.5(a) 	mandates
that 	PERB has 	no 	jurisdiction 	to 	issue a 	complaint until 	the
grievance machinery of 	the agreement, 	if 	it 	exists 	and covers 	the
matter at 	issue, 	has been exhausted, 	either by settlement 	or
binding arbitration. 	The 	Board has 	erroneously required 	the
contract 	to 	contain binding arbitration as 	a prerequisite 	to
deferral 	in numerous 	cases 	and misstates 	Lake 	Elsinore as
1Dills Act section 3514.5 	states, 	in pertinent part, 	that
PERB shall 	not:
Issue 	a 	complaint 	against 	conduct 	also
prohibited by the provisions 	of 	the
[collective 	bargaining 	agreement 	in 	effect]
between 	the parties 	until 	the 	grievance
machinery of the agreement, 	if 	it 	exists and
covers 	the matter at 	issue, 	has been
exhausted, 	either by 	settlement 	or binding
arbitration.
2PERB 	regulations 	are 	codified at 	California Code 	of
Regulations, 	title 8, 	section 31001 et seq.
w	3

support.3 However, 	in this 	case 	it 	is a harmless error and I
agree with 	the 	Board agent's 	conclusion 	that 	PERB 	lacks
jurisdiction 	over allegations 	which 	the parties 	have 	agreed 	can
be 	deferred 	to 	arbitration.
As 	the Board agent 	noted at page 	3 	of 	the warning 	letter,
under the Lake Elsinore decision, 	Dills Act 	section 3514.5(a) 	is
jurisdictional; 	thus, 	having concluded that 	the 	case must be
dismissed and deferred to arbitration, 	PERB 	lacks 	jurisdiction
and has 	no authority to make a ruling 	on the merits 	of 	the 	case.
The Board is wrong to dismiss 	"without 	leave to amend" 	since 	it
is prejudicial 	to the rights 	of 	the parties and state policy. 	I
would 	remand 	the 	case 	to be held 	in abeyance pending 	exhaustion
of 	the 	contractual 	grievance machinery.
3The 	grievance 	procedure 	in 	Lake 	Elsinore 	could have 	ended
in binding arbitration 	(see p. 	20), 	but 	it did not expressly make
binding arbitration a 	condition for deferral. 	At page 28, 	the
Board 	held:
. 	. 	. 	EERA proscribes this Board's issuance
of 	a 	complaint 	against 	conduct 	prohibited by
the parties' 	agreement prior to the
exhaustion of 	the 	contract's 	grievance-
arbitration machinery. 	. 	. 	.
The word 	"binding" 	does 	not 	appear 	in that 	statement 	of 	the
Board's 	opinion, 	nor does 	the decision 	condition deferral 	on the
availability of arbitration in the parties' 	agreement. 	See my
concurrence 	in State 	Center Community College District 	(1994)
PERB Order No. 	Ad-255, 	for a more expanded discussion of 	this
issue.
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STATE OF CALIFORNIA 	PETE WILSON. Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
1031 18th Street, Room 102
Sacramento, CA 95814-4174
(916) 322-3198
March 3, 	1994
William A. 	Sokol
VAN BOURG, 	WEINBERG,
ROGER 	& 	ROSENFELD
875 	Battery Street
San Francisco, 	CA 	94111
Re: 	International Union of Operating Engineers. 	Craft-
Maintenance Division v. 	State 	of 	California 	(Department 	of
Transportation)
Unfair Practice 	Charge No. 	S-CE-693-S
DISMISSAL 	LETTER
Dear Mr. 	Sokol:
On December 10, 	1993 	you 	filed 	the above-referenced 	charge 	on
behalf 	of 	the 	International 	Union of Operating Engineers 	(IUOE).
In your 	charge you allege violations 	of 	Government 	Code 	section
3519(a), 	(b) 	, 	and 	(d). 	Specifically, 	you allege that Jimmy
Evans 	was 	denied his 	right 	to 	representation.
I 	indicated to you, 	in my attached letter dated January 24, 	1994
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 	which would 	correct 	the
deficiencies 	explained 	in that 	letter, 	you should amend the
charge. 	You were 	further advised that, 	unless you amended the
charge 	to 	state a prima 	facie 	case 	or withdrew it prior 	to
January 31, 	1994, 	the charge would be dismissed.
I 	received your letter of January 31, 	1994. 	In that 	letter you
reiterate 	that 	the 	employer had been 	told by the 	IUOE 	that 	"only
union representative, 	and not 	job stewards, 	may be present 	at
meetings 	where Weingarten rights 	are at 	issue." 	You point 	out
that 	the 	employer directed a 	steward to be at 	the meeting. 	You
also 	state 	that 	the meeting was 	not 	held 	for the 	sole purpose 	of
informing the 	employee 	of discipline. 	Rather, 	the employer asked
the 	employee whether he 	had 	falsified a 	document.
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March 3, 	1994
Page 	2
In my letter of January 24, 	1993, 	I 	informed you that 	I was aware
of 	no authority which would entitle 	an employee 	to 	the union
representative 	of 	choice 	and 	that 	an 	employer may generally 	to
proceed 	so 	long as 	another union 	representative 	is 	available at
the 	time 	set 	for the disciplinary 	interview. 	Accordingly I must
dismiss 	this 	charge.
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. 	(Cal. 	Code of
Regs., 	tit. 	8, 	sec. 	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 p.m.) 	or sent by
telegraph, 	certified or 	Express 	United States mail 	postmarked no
tit. 	8, 	sec. 	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 	(20) 	calendar
days 	following the date of service of 	the appeal. 	(Cal. 	Code of
Regs., tit. 8, sec. 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 Cal. 	Code of Regs.,
tit. 	8, 	sec. 	32140 	for the required contents and a sample form.)
The 	document 	will 	be 	considered properly 	"served" 	when personally
delivered or deposited 	in 	the 	first-class 	mail, 	postage paid and
properly 	addressed.
Extension of Time: 	A request 	for an extension of 	time, 	in which
to 	file 	a document with 	the Board 	itself, 	must be 	in writing and
filed with 	the 	Board at 	the previously noted address. 	A request
for an extension must be 	filed at 	least 	three 	(3) 	calendar days
before 	the 	expiration of 	the 	time 	required 	for 	filing 	the
document. 	The 	request must 	indicate good cause 	for and, 	if
known, 	the position of 	each other party regarding 	the 	extension,
and 	shall 	be 	accompanied by proof 	of 	service 	of 	the 	request 	upon
each party. 	(Cal. 	Code of Regs., 	tit. 	8, 	sec. 	32132.)
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March 3, 	1994
Page 3
Final Date: 	If no appeal 	is filed within the specified time
limits, 	the dismissal will become final when the time limits have
expired.
Sincerely,
ROBERT THOMPSON
Deputy General 	Counsel
By Bernard McMonigle
Regional Attorney
Attachment
cc: 	Roy J. 	Chastain, DPA
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STATE OF CALIFORNIA 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
1031 18th Street, Room 102
Sacramento, CA 95814-4174
(916)322-3198
January 24, 	1994
Mr. William A. 	Sokol
VAN BOURG, WEINBERG,
ROGER 	& ROSENFELD
875 Battery Street
San Francisco, 	CA 	94111
Re: 	International Union of Operating Engineers. 	Craft-
Maintenance Division v. 	State of California 	(Department of
Transportation)
Unfair Practice Charge No. 	S-CE-693-S
WARNING 	LETTER
Dear Mr. Sokol:
On December 10, 	1993 you filed the above-referenced charge on
behalf of the International Union of Operating Engineers 	(IUOE).
In your charge you allege violations of Government Code section
3519(a), 	(b), and (d). 	Specifically, you allege that Jimmy Evans
was denied his right to representation.
Investigation reveals the following. 	Your charge states, 	"At a
meeting on September 29, 	1993, 	Supervisor John Eaves gave Jimmy
Evans, 	a memorandum entitled 	'Review of Leave Verification' 	dated
the same day." 	You state that this meeting was held over the
protest 	of IUOE Business Representative Stephanie Allen who had
requested that the meeting be put over to the next day, 	September
30, 	1993, 	because she had a scheduling conflict. 	IUOE Steward,
Michelle Delgado was present at the meeting between Eaves and
Evans. 	You further state however, 	Mr. 	Eaves and the Paint Region
of Cal Trans, 	District 4, 	had been specifically advised in
writing that 	"the stewards 	cannot provide such representation."
According to the employer representative, 	the meeting was very
brief and was held only to inform Eaves 	that he was to be docked
three days pay.
The right 	to representation attaches at 	an employer-conducted
interview where an employee reasonably anticipates and fears 	that
the 	interview may lead to disciplinary action. 	Rio Hondo
Community College 	(1982) 	PERB Dec. 	No. 	260. 	Where a meeting is
held merely to 	inform the 	employee of previously pre-determined
discipline, 	no right to representation exists. 	Rio Hondo
---·--Community College District, 	supra. 	From the information
provided, 	it appears that the meeting of September 29, 	1993 was
held merely to notify Evans of 	the previously determined
discipline. 	There are no facts presented which indicate that
there was an interview which might 	lead to a disciplinary action.
Accordingly, 	you have not demonstrated either a violation of the
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January 24, 	1994
Page 2
employee's right to union representation or the IUOE's right to
represent.1
The 	IUOE and the State of California are currently parties to a
collective bargaining agreement 	covering the Craft-Maintenance
employees. 	The current agreement is effective July 1, 	1992
through June 30, 	1995. 	Section 21.3 of the agreement is entitled
"Reprisals" and states:
The state and IUOE shall be prohibited from
imposing or threatening to impose reprisals
from discriminating or threatening to
discriminate against employees, 	or otherwise
interfering with, 	restraining, 	or coercing
employees because of the exercise of their
rights under the Dills Act or any right given
by this agreement.
The collective bargaining agreement also contains a grievance and
arbitration procedure in Article 14. 	That procedure ends in
binding arbitration.
Section 3514.5(a) 	of the Ralph C. Dills Act 	(Dills Act) 	states,
in pertinent part, 	that PERB shall not:
Issue a complaint against conduct also
prohibited by the provisions of the
[collective bargaining agreement 	in effect]
between the parties until the grievance
machinery of the agreement, 	if it exists
and covers the matter at issue, 	has been
exhausted, 	either by settlement or binding
arbitration.
1 In your charge you also state that while Mr. 	Evans was not
represented by the IUOE business representative that he had
requested, 	Evans was represented by an IUOE shop steward. 	I am
aware of no authority which would entitle Mr. 	Evans the union
representative of his choice. 	As stated in The Developing Labor
Law. 	(ABA Section of Labor and Employment Law, 	3d ed. 	1992 at p.
156), 	"Weingarten does not require an employer to postpone an
interview because a specific union representative the employee
requested is absent, 	so long as another union representative is
available at the time set for the interview. Nor is the employer
obliged to suggest or secure alternative representation for the
employee." 	(citations omitted)
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January 24, 	1994
Page 3
In Lake Elsinore School District 	(1987) 	PERB Decision No. 	646,
PERB held that section 3541.5(a) 	of the Educational Employment
Relations Act, 	which contains language identical to
section 3514.5(a) 	of the Dills Act, 	established a jurisdictional
rule requiring that a charge be dismissed and deferred if: 	(1)
the grievance machinery of the agreement 	covers the matter at
issue and culminates in binding arbitration; and, 	(2) 	the conduct
complained of 	in the unfair practice charge is prohibited by the
provisions of the agreement between the parties. 	PERB Regulation
32620(b)(5) 	(Cal. Code of Regs., tit. 8, sec. 32620(b)(5)) also
requires 	the investigating Board agent to dismiss a charge where
the allegations are properly deferred to binding arbitration.
These standards are met with respect to this case. 	First, 	the
grievance machinery of the agreement/MOU covers the dispute
raised by the unfair practice 	charge and culminates 	in binding
arbitration. 	Second, 	the conduct complained of in this charge,
that 	the 	employer interfered with the representation rights 	of
Jimmy Evans, 	is arguably prohibited by Section 21.3 of the MOU.
That section prohibits such interference.
Accordingly, 	the alleged interference with employee rights must
also be deferred to arbitration and will be dismissed. 	Such
dismissal is without prejudice to the Charging Party's right,
after arbitration, 	to seek a repugnancy review by PERB of the
arbitrator's decision under the Dry Creek criteria. 	(See PERB
Reg. 32661 [Cal. Code of Regs., tit	- - 	. 8, sec. 32661]; Los Angeles
Unified School District 	(1982) 	PERB Decision No. 	218; 	Dry Creek
Joint Elementary School District 	(1980) 	PERB Order No. 	Ad-81a.)
If there are any factual 	inaccuracies in this letter or any
additional 	facts which would require a different 	conclusion than
the one explained above, 	please amend the charge. 	The amended
charge should be prepared on a standard PERB unfair practice
charge form clearly labeled First Amended Charge, 	contain all
the facts and allegations you wish to make, 	and be signed unde	- 	r
penalty of perjury by the Charging Party. 	The amended charge
must be 	served on the Respondent and the original proof 	of
service filed with PERB. 	If 	I do not receive an amended charge
or withdrawal from you before January 31. 	1994, 	I shall dismiss
your charge without leave to amend. 	If you have any questions,
please call me at 	(916) 	322-3198.
Sincerely,
Bernard McMonigle
Regional Attorney
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