State of California (Cstate Employees Association, Service Employees International Union Local 1000) (PERB 1056S)

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 	CORRECTIONS),
Respondent.
)
)
)
) 	Case No. 	S-CE-643-S
PERB Decision No. 	1056-S
September 	14, 	1994
)
)
)
)
)
)
)
Appearances: 	California 	State 	Employees Association by Howard
Schwartz, 	Attorney, 	for California State Employees Association,
SEIU, 	Local 	1000; 	State of California 	(Department of 	Personnel
Administration) 	by Roy J. 	Chastain, 	Labor Relations Counsel, 	for
State of California 	(Department of Corrections).
Before Blair, 	Chair; 	Caffrey and Garcia, 	Members.
DECISION
CAFFREY, 	Member: 	This 	case is before the Public Employment
Relations 	Board 	(PERB or Board) 	on appeal 	by the 	California State
Employees Association, 	SEIU, 	Local 	1000 	(CSEA) 	of a proposed
decision 	(attached hereto) 	of 	a 	PERB administrative 	law judge
(ALJ). 	In the proposed decision, 	the ALJ dismissed CSEA's 	charge
that 	the 	State 	of 	California 	(Department 	of 	Corrections)
(Department) 	violated section 3519(a), 	(b) 	and 	(c) 	of the
Ralph C. 	Dills Act 	(Dills Act)1 when it 	changed the
1The 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 	states, 	in
pertinent part:
It 	shall 	be unlawful 	for the 	state 	to do any
of 	the 	following:
e

(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.
(c) 	Refuse or fail 	to meet and confer in
good 	faith with 	a 	recognized 	employee
organization.
student/teacher 	ratio 	in 	the 	Department's 	education programs
without 	negotiating with CSEA, 	and when 	it 	failed 	to provide 	CSEA
with 	information which was 	necessary and 	relevant 	to 	the
representation of 	its members.
The 	Board has 	reviewed 	the 	entire 	record 	in this 	case,
including 	the proposed decision, 	the 	hearing 	transcript 	and 	the
parties' 	filings. 	The Board adopts 	the proposed decision as 	the
decision 	of 	the 	Board 	itself 	in accordance 	with 	the 	following
discussion.
DISCUSSION
An 	employer 	commits 	a unilateral 	change 	and violates 	Dills
Act 	section 3519 	if the 	following criteria are met: 	(1) 	the
employer breaches 	or alters 	the parties' 	written agreement 	or
established past practice; 	(2) 	such action is 	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
22

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.)
In considering 	the alleged unilateral 	change, 	the ALJ 	first
notes 	that while notification of 	the 	class 	size 	increase 	occurred
on October 29, 	1992, 	prior to ratification of the successor CBA,
the 	increase was 	effective 	in December 1992, 	after the successor
CBA had gone 	into 	effect.2 Referring 	to 	the 	class 	size provision
of 	the CBA, 	which states 	that 	"final 	class 	size determinations
shall 	be within the 	authority and discretion of management," 	the
ALJ 	concludes 	that 	"the Department 	was 	given the 	authority 	to
increase 	the 	student/teacher classroom ratio by 	the parties' 	MOU"
and, 	therefore, 	did not violate the Dills Act when it did so.
CSEA's 	appeal 	turns 	on the 	assertion that 	the ALJ erred 	in
concluding 	that 	the 	change 	in 	class 	size 	occurred 	in December
1992 	when it became 	effective, 	and when the 	successor CBA was 	in
effect. 	CSEA argues 	that 	the 	increase 	in class 	size actually
occurred 	in October 	1992 	during a period when no 	CBA was 	in
effect between 	the parties, 	thereby requiring 	the Department 	to
negotiate 	over the 	subject 	of 	class 	size before 	changing the
status quo. 	Since 	it 	failed to do so, 	CSEA argues 	that 	the
2The parties' 	prior CBA expired in June 1991. 	Protracted
negotiations 	over a 	successor CBA resulted 	in 	the parties
reaching 	a 	tentative 	agreement 	subject 	to 	ratification on
October 7, 	1992. 	The 	successor CBA was 	ratified on November 16,
1992, 	and the agreement was 	retroactively effective 	on
November 1, 	1992.
w
	3

Department's 	action 	constitutes 	a per se violation of 	its 	duty to
negotiate 	in good 	faith pursuant 	to 	Pajaro Valley Unified 	School
District 	(1978) 	PERB Decision No. 	51 	(Pajaro Valley USD).3
The 	Board has 	held 	that 	a unilateral 	change 	occurs 	when an
official 	action has been taken, 	not at a subsequent date when
that 	action becomes 	effective. 	(Anaheim Union High School
District 	(1982) 	PERB Decision No. 	201; 	Eureka City School
District 	(1992) 	PERB Decision No. 	955.) 	In this case, 	the
Department clearly indicates 	in its October 29, 	1992, 	letter to
CSEA that 	it 	has made 	the 	decision to 	increase 	class 	size.
Therefore, 	the ALJ's 	conclusion that 	the alleged unilateral
change occurred in December is 	incorrect. 	As a result, 	the Board
must analyze 	the Department's 	conduct 	in light 	of 	the 	fact 	that
the 	negotiated 	term of 	the parties' 	CBA had expired at 	the 	time
of 	the alleged unlawful 	conduct on October 29, 	1992, 	and the
successor CBA was 	not yet 	in effect.
The 	Board has 	held that when the parties' 	CBA expires 	an
employer must maintain 	certain 	terms 	contained within 	it 	until
such 	time 	as 	bargaining 	over a 	successor agreement 	has 	been
completed either by reaching agreement 	or 	impasse. 	(Pajaro
Valley USD; 	San Mateo 	County Community College 	District 	(1979)
PERB Decision No. 	94; 	NLRB v. 	Katz 	(1962) 	369 U.S. 	736
3CSEA does 	not 	except 	to 	the ALJ's 	finding 	that 	the
Department 	did not 	violate 	the Dills Act 	by 	failing 	to provide
CSEA with 	information necessary and 	relevant 	to 	its
representation of 	its members. 	The Board affirms 	this 	finding by
the ALJ.
4

[50 LRRM 2177]; 	Department of 	Personnel Administration v.
Superior Court 	(1992) 	5 	Cal.App.4th 155 	[6 	Cal.Rptr.2d 714].)
Therefore, 	while CSEA's 	assertion that no CBA was 	in effect 	at
the time of 	the alleged unlawful 	conduct on October 29, 	1992, 	is
correct, 	certain terms 	of 	the 	expired CBA remained 	in effect 	at
that 	time 	since 	the 	successor agreement 	had not 	yet 	been
ratified. 	Among 	those 	terms was 	a provision concerning 	class
size.
To 	determine whether a unilateral 	change 	occurred 	in 	this
case, 	we must 	consider the Department's action in light 	of 	the
still-in-effeet 	class 	size 	provision of 	the 	expired CBA.4 That
provision 	(Article 21.3a) 	states:
It 	is 	the policy of 	the State 	that 	the
educational needs of 	its 	students are of
primary 	importance 	taking 	into 	consideration
needs of the staff, 	available facilities,
equipment, 	financial 	resources and other
operational 	needs. 	In adhering to this
policy, 	the State agrees 	to meet and confer
with the Union over the 	impact 	of management
proposed 	changes 	to 	existing 	class 	size
criteria. 	It 	is 	recognized that 	final 	class
size 	determinations 	shall 	be within 	the
authority and 	discretion 	of 	management.
This 	still-in-effect 	provision 	clearly 	assigns 	to management
the authority and discretion to determine 	class 	size. 	In doing
so, 	it 	obligates management 	to meet 	and 	confer with CSEA over the
impact 	of 	changes 	in class 	size. 	There 	is no requirement placed
4This provision 	is 	identical 	to 	the 	class 	size provision of
the successor CBA. 	Accordingly, 	the ALJ's 	conclusion that 	the
successor CBA was 	in effect 	at 	the 	time 	of 	the alleged unlawful
conduct 	is 	essentially 	irrelevant 	to 	the 	consideration of 	that
conduct 	in relation to this provision, 	and does not 	constitute a
prejudicial 	error.
5

on 	the Department 	by 	this 	provision 	to negotiate 	"final 	class
size determinations."
The 	record 	clearly 	indicates 	that 	the Department 	notified
CSEA of 	its 	intention to 	exercise 	its 	discretion 	to 	increase
class size in its October 29, 	1992, 	letter. 	The Department also
extended 	to 	CSEA the 	opportunity to meet 	and 	confer 	over 	the
impact 	of 	the 	class 	size 	increase.5 At 	the 	resulting meet 	and
confer session on December 18, 	1992, 	CSEA demanded to negotiate
over 	the 	decision 	to 	increase 	class 	size 	and not merely 	its
impact. 	When the Department 	refused to do 	so, 	the meeting was
terminated by 	CSEA. 	The 	Board 	concludes 	that 	the 	Department
acted 	in accordance with 	the 	still-in-effect 	class 	size provision
of 	the 	expired 	CBA when 	it 	extended 	to 	CSEA the 	opportunity 	to
bargain over the 	impact 	of 	its 	decision to 	increase 	class 	size.6
5In the October 29, 	1992, 	letter, 	the Department 	indicates
that 	it 	is 	notifying and providing 	CSEA the 	opportunity 	to
negotiate 	over 	the 	impact 	of 	the 	class 	size 	increase 	in
accordance with the 	"Entire Agreement" 	provision of 	the 	CBA. 	The
expired 	CBA contained an 	"Entire Agreement" 	or waiver provision
(Article 	23) 	under which the parties 	had specifically waived 	or
limited their 	rights 	to negotiate 	over 	certain matters. 	However,
the 	"Entire Agreement" 	provision of 	the 	expired CBA specifically
provided 	that 	it was 	in effect 	only 	for 	the 	duration of 	the
contract, 	and was, 	therefore, 	not in effect in October 1992.
(State 	of 	California 	(Department 	of 	Forestry and 	Fire 	Protection)
(1993) 	PERB Decision No. 	999-S.) 	As noted above, 	the still-in-
effect 	class 	size 	provision 	of 	the 	expired CBA required 	the
Department 	to meet 	and confer with 	CSEA over 	the 	impact 	of 	a
class 	size 	increase. 	Therefore, 	the Department's actions were 	in
compliance with 	this 	provision 	even 	though 	the 	October 29 	letter
refers 	to the 	"Entire Agreement" 	provision.
6In its 	exceptions, 	CSEA briefly refers 	to the argument 	it
made 	to 	the ALJ 	that 	the 	contract 	provision 	concerning 	class
size, 	if 	in effect, 	does not 	clearly and unmistakably waive
CSEA's 	right 	to bargain over 	the 	subject 	of 	an 	increase 	in 	class
size. 	The ALJ 	correctly 	rejected 	CSEA's 	strained 	interpretation
concluding 	that 	the 	language 	of 	the provision 	"is 	not 	ambiguous."
66

Therefore, 	the Department 	did not 	commit 	a unilateral 	change 	in
violation of 	the Dills Act when 	it 	acted 	in 	compliance with 	that
provision.7
ORDER
The 	complaint 	and unfair practice 	charge 	in Case
No. 	S-CE-643-S 	is 	hereby DISMISSED.
Chair Blair 	joined 	in 	this 	Decision.
Member Garcia's 	dissent begins 	on page 	8.
7PERB's 	jurisdiction in this 	case 	is 	clear. 	In Lake
Elsinore School District 	(1987) 	PERB Decision No. 	646, 	the Board
enunciated 	the 	jurisdictional 	standard under which 	charges 	are
dismissed and 	deferred 	to 	the 	grievance 	and 	arbitration process
contained in the parties' 	CBA. 	In State of 	California,
Department of Youth Authority 	(1992) 	PERB Decision No. 	962-S, 	the
Board 	enunciated 	the 	standard 	under 	which 	arbitration 	clauses
continue 	in effect 	after 	the 	expiration of 	a CBA. 	These
standards are not met 	in this 	case. 	Therefore, 	this 	case 	is
properly before 	the 	Board.
77

GARCIA, 	Member, 	dissenting: 	I dissent. 	Public Employment
Relations 	Board 	(PERB or Board) 	jurisdiction was 	an 	issue brought
to 	the attention of 	PERB agents 	early and at various points 	in
the process 	of 	this 	case; 	the 	issue was never addressed or
resolved by 	PERB agents. 	PERB 	failed to meet 	its 	obligation to
establish 	jurisdiction before 	proceeding.1
The 	original 	unfair practice 	charge 	face 	sheet 	indicates
that 	a grievance procedure 	exists 	that 	culminates 	in binding
arbitration, 	but 	that the procedure was 	not 	invoked. 	Yet 	the
charge 	itself 	states 	that:
On November 19, 	1992, 	CSEA filed a grievance
for bad faith bargaining. 	. 	. 	.
The 	grievance has 	not been responded 	to and
there 	has 	been no 	request 	by 	the Department
of 	Corrections 	for an extension of 	timelines.
Prior to the grievance response 	. 	. 	. 	the
Department 	has 	unilaterally 	impl[e]mented 	the
increase 	in class 	size.
A grievance 	form is 	attached 	to 	the 	charge 	that 	alleges 	a
violation of sections 	"48, 	5.6, 	23.1a, 	Ralph C. 	Dills Act, 	and
any other Articles 	and Sections 	that 	may apply." 	The 	relief
sought was 	that 	the department 	"shall 	not 	attempt 	to 	implement 	an
gee 	Lake Elsinore School District 	(1987) 	PERB Decision
No. 	646, 	citing cases which establish that 	this Board has only
such jurisdiction as 	have been 	conferred upon 	it 	by statute; 	that
the Board acts 	in excess 	of 	its 	jurisdiction if 	it violates 	the
statutes 	conferring and/or 	limiting 	its 	jurisdiction and powers;
that where 	the Board 	is without 	jurisdiction with respect 	to a
matter before 	it, 	it must dismiss 	the matter on its 	own motion,
regardless 	of 	whether 	the 	jurisdictional 	issue 	has 	been 	raised by
the parties; 	and that where the Board is without 	jurisdiction, 	it
cannot acquire jurisdiction by the parties' 	consent, 	agreement,
stipulation or acquiescence, 	nor by waiver or estoppel.
8

increase 	in class 	size 	for the duration of 	this 	contract." 	After
investigation of 	the 	charge,2 PERB 	issued a 	complaint 	on
December 30, 	1992 	that 	contains no discussion of 	the 	jurisdiction
issue.
In its answer to the complaint, 	the State of 	California
(Department of Corrections) 	(Department) 	refers to a November 19,
1992 	letter 	from the 	California 	State 	Employees 	Association,
SEIU, 	Local 	1000 	(CSEA) 	(also attached to the charge) 	objecting
to 	the proposed change, 	and noting CSEA's position 	in 	that 	letter
that 	"the grievance procedure 	is 	the appropriate 	forum for this
issue." 	Furthermore, 	the Department 	raised lack of 	PERB
jurisdiction as 	an affirmative 	defense, 	urging 	PERB 	to dismiss
the 	complaint 	and defer 	the 	charge 	to 	the Memorandum of
Understanding 	grievance 	procedure 	"which 	concludes 	in binding
arbitration. "3
2The 	file 	also 	contains what 	appears 	to be 	a 	form letter
dated December 16, 	1992 	from the Regional Attorney to the
parties, 	informing 	them of 	PERB's procedure 	for 	investigating 	the
charge. 	The 	letter 	contains 	no 	information regarding 	the
deferrability of 	the 	conduct underlying 	the 	charge.
3The 	reason stated 	for asserting 	this 	defense 	is:
Respondent 	AFFIRMATIVELY ALLEGES 	that 	the
matters 	contained 	in 	the 	unfair 	[practice
charge] 	are matters 	negotiated by the parties
in §21.3 [] 	and §23.1 of the Unit 3 Collective
Bargaining Agreement. 	Pursuant 	to Government
Code 	[section] 	3514.5 	and PERB precedent,
(Lake Elsinore School District 	(1987) 	PERB
Decision No. 	646), 	PERB lacks jurisdiction in
this matter. 	Accordingly, 	PERB must dismiss
the 	instant 	complaint 	and defer 	the unfair
practice 	charge 	to 	the Unit 	3 MOU grievance
procedure 	which 	concludes 	in binding
arbitration.
99

On 	the 	face 	sheet 	of 	the 	amended 	complaint 	filed by 	CSEA,
however, 	the grievance procedure 	section is 	left blank and the
file 	does 	not 	show 	that 	the 	Board agents 	complied with 	their duty
to make 	further 	inquiry. 	Although 	the ALJ's proposed decision
mentions affirmative defenses 	generally, 	there 	is no discussion
of 	the November 	19 	grievance and 	its 	possible 	effect 	on the
deferral 	defense.4
Furthermore, 	testimony from the hearings5 indicates 	that
CSEA 	sought 	a meeting with Department 	representatives 	to 	discuss
both the grievance and the unfair practice 	charge whereas, 	in
CSEA's words, 	the Department 	"wanted to discuss 	only the 	impact
of 	the existing 	changes."6
The majority opinion 	in this 	case 	ignores 	this 	fundamental
issue. 	Even 	if 	the 	respondent 	had not 	raised the 	defense 	of
lack of 	jurisdiction based on deferral, 	there were
inconsistencies 	in CSEA's 	approach to the 	issue 	of 	grievability
at various 	stages 	of the case. 	Since 	it 	is 	our obligation7 to
establish jurisdiction of 	a 	case before 	ruling 	on 	the merits,
4The proposed decision 	contains 	a 	"Jurisdiction" 	section
consisting of 	a recitation of 	the parties' 	stipulations 	that
"CSEA is 	a 	recognized employee 	organization and 	the 	Respondent 	is
a 	state 	employer within the meaning 	of 	section 	3513." 	There 	is
no 	statement 	establishing 	PERB 	jurisdiction under 	section
3514.5(a)(2).
5R.T., Volume I, 	page 22, 	lines 4-6; 	see also Volume I,
pages 56 and 142-143; 	Volume II, 	pages 127 and 134-135.
6CSEA's Reply to Respondent's 	Closing Brief, 	page 	4.
7See footnote 1, 	supra.
10

PERB 	is 	duty bound 	to ascertain at 	the 	earliest 	possible 	stage
whether or not 	the 	disputed 	conduct 	is 	grievable. 	Especially
when one party specifically raises 	the 	issue, 	the Board agents,
the ALJ 	and 	the 	Board majority 	should have 	paid more 	attention 	to
the 	jurisdiction question.8
CONCLUSION
For the 	reasons 	stated above, 	I would remand this 	case 	for a
ruling on the 	jurisdictional 	issue and, 	if necessary, 	for
deferral 	to 	the 	contractual 	grievance process.
8Footnote 	7 	in the majority opinion, 	added after the
original 	opinion was 	signed and ready 	for 	issuance, 	is 	an
afterthought 	to my original 	dissent. 	As my dissent makes 	clear,
neither 	the majority 	nor 	other 	Board agents 	inquired 	into
jurisdiction under the Dills Act. 	It has become apparent 	to me
that 	the majority 	ignores 	statutory 	requirements 	and 	state policy
that 	favor private 	resolution of disputes, 	in order to avoid a
shrinking 	caseload. 	Footnote 	7 	is 	a perfunctory cover 	for that
objective. 	Additionally, 	the majority's 	tactical 	footnote does
not meet 	the 	requirements 	of 	PERB Regulation 32620.
11

STATE 	OF 	CALIFORNIA
PUBLIC 	EMPLOYEES 	RELATIONS 	BOARD
CALIFORNIA STATE 	EMPLOYEES
ASSOCIATION, 	SEIU, 	LOCAL 1000,
Charging 	Party,
v.
STATE 	OF 	CALIFORNIA 	(DEPARTMENT
OF 	CORRECTIONS),
Respondent.
)
)
)
) 	Unfair 	Practice
Case No. 	S-CE-643-S
PROPOSED DECISION
(12/24/93)
)
)
)
)
)
)
)
Appearances; 	Howard Schwartz, 	Attorney, 	for California State
Employees Association; 	Roy J. 	Chastain, 	Labor Relations Counsel,
Department of Personnel Administration, 	for the State of
California 	(Department of Corrections).
Before Allen R. 	Link, 	Administrative Law Judge.
PROCEDURAL 	HISTORY
On December 14, 	1992, 	the California State Employees
Association 	(Charging 	Party or CSEA) 	filed an unfair practice
charge with 	the 	Public 	Employment 	Relations 	Board 	(PERB 	or Board)
against 	the 	State 	of 	California 	(Department 	of 	Corrections)
(Respondent 	or Department). 	The charge alleged violations of
subdivisions 	(a), 	(b) 	and 	(c) 	of section 3519, 	a part of the
Ralph C. Dills Act 	(Act).1
1The Act 	is 	codified at Government 	Code 	section 3512 	et 	seq.
All 	section references, 	unless otherwise noted, 	are to the
Government Code. 	Subdivisions 	(a), 	(b) 	and 	(c) 	of section 3519
state:
3519. 	UNLAWFUL ACTIONS BY STATE
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
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.

to interfere with, 	restrain, 	or coerce
employees because 	of 	their exercise of 	rights
guaranteed by this 	chapter. 	For purpose 	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.
On December 30, 	1992, 	the Office of the General Counsel of
PERB, 	after an investigation of 	the 	charge, 	issued a complaint
alleging violations 	of 	the 	same 	subdivisions 	of 	section 3519.
On January 20, 	1993, 	the Respondent answered the complaint
denying 	all 	material 	allegations 	and asserting 	several
affirmative defenses.
On January 27, 	1993, 	an informal 	conference was held in an
attempt 	to 	reach voluntary settlement. 	No 	settlement 	was
reached.
On March 11, 	1993, 	CSEA filed a motion to amend the
complaint 	with an accompanying 	first 	amended 	charge, 	setting
forth additional 	allegations. 	After an extensive discussion, 	the
motion was 	granted, 	thereby adding 	five paragraphs 	to 	the
complaint.2
2The additional paragraphs are as 	follows:
15. 	On or about October 7, 	1992, 	Respondent agreed to 	"roll
over" 	into a new MOU for Unit 	3 	preexisting 	contract 	language
regarding 	class 	size maximum limits 	for academic programs 	in 	the
Department and the 	California Youth Authority 	(CYA). 	Respondent
did 	so with the 	knowledge 	that 	Charging 	Party would not 	agree 	to
an 	increase 	in maximum class 	size 	limits. 	Respondent 	further did
so with 	the 	knowledge 	that 	Charging 	Party would not 	have agreed
to 	"roll 	over" 	class 	size 	language 	or sign a new MOU for Unit 	3
22

had 	it 	provided 	for an 	increase 	in 	class 	size maximum limits.
16. 	Despite 	the agreement 	to 	roll 	over preexisting 	contract
language 	regarding 	class 	size maximum limits, 	on or about 	October
29, 	1992, 	Respondent unilaterally increased class 	size maximum
limits 	for Department 	academic programs 	to a maximum 27 	students.
17. 	By 	the acts 	and conduct 	described in paragraphs
15 	and 16 	above, 	Respondent has 	engaged in fraudulent and
deceptive bargaining, 	has 	reneged on its agreements, 	and has
failed and 	refused 	to negotiate 	in good 	faith 	in violation
of section 3519 (c).
18. 	By the acts 	and conduct 	described 	in paragraphs
15 	and 16 	above, 	Respondent has also denied Charging Party
its 	right 	to 	represent bargaining unit members 	in violation
of section 3519(b).
19. 	By the acts 	and conduct described 	in paragraphs
15 	and 16 	above, 	Respondent 	has also 	interfered with the 	rights
of 	bargaining unit 	employees 	to be 	represented by Charging 	Party
in violation of section 3519(a).
The 	formal hearing was held on March 16, 	17 and 18, 	1993,
before 	the undersigned. 	Both sides 	filed post-hearing briefs.
The 	last brief was 	filed on July 6, 	1993, 	and at 	that 	time 	the
case was 	submitted 	for a proposed decision.
INTRODUCTION
The Department 	has 	had a practice 	of maintaining a 	24:1
student/teacher ratio 	in educational 	programs 	in 	its
institutions. 	During negotiations 	for a 	successor Memorandum of
Understanding 	(MOU) 	CSEA proposed lowering this 	ratio. 	The
Department 	preferred 	to maintain 	the 	previous MOU 	language 	which
gave 	it 	the unilateral 	right 	to modify this 	ratio, 	but 	required
it 	to meet 	and 	confer 	over 	the 	impact 	any 	change would have 	on
its 	employees. 	The parties 	eventually agreed to maintain the
previous 	language.
W
	3

Shortly after 	the parties 	had 	tentatively agreed 	to 	the
successor MOU, 	but before 	it had been ratified, 	the Department
gave CSEA notice 	that 	it was 	going 	to 	increase 	this 	ratio 	to
27:1.
CSEA insists 	this 	increase, 	in light 	of 	the Department's
actions during negotiations, 	manifests a 	failure 	to negotiate 	in
good faith. 	The Department 	disagrees. 	It maintains 	the decision
to 	increase 	the 	ratio was made after the negotiations process 	had
been 	completed and was 	a necessary 	fiscal 	reaction 	to 	the
recently 	passed 	and promulgated 	state 	budget.
In addition, 	CSEA asked 	for class 	size 	statistics 	at 	the
various 	institutions, 	information 	that was 	necessary and relevant
for 	it 	to represent 	its members. 	The Department 	located and
compiled 	such 	information, 	but 	CSEA failed 	to ask 	for and accept
possession at 	the 	time and place 	it was 	told the data was
available. 	CSEA insists 	the Department violated the Act by
failing 	to provide 	such 	information.
JURISDICTION
The parties stipulated, 	and it 	is 	therefore 	found, 	that 	CSEA
is 	a 	recognized 	employee 	organization and 	the Respondent 	is 	a
state 	employer within the meaning of 	section 3513.
FINDINGS 	OF 	FACT
CSEA is 	the 	exclusive 	representative 	for employees 	in State
Bargaining Unit 3 	(Unit 3 ) , 	which includes teachers and
educational personnel 	in various 	state agencies, 	including those
in the 	institutions 	and prisons 	run by the Department.
44

CSEA and 	the Department 	are parties 	to a MOU 	for Unit 	3.
The 	first MOU for Unit 3 was 	signed in 1982. 	Since 	1984, 	the
Unit 	3 MOUs have 	contained a 	"class 	size" 	provision. 	Originally,
this provision required the 	state 	to 	"meet and discuss" 	changes
in class 	size. 	In 1988, 	this provision was 	changed to a 	"meet
and confer" 	over the 	impact 	of 	class 	size changes.3
In June 	1991, 	the parties began negotiations 	on a successor
MOU. 	One 	of 	the 	central 	concerns 	of 	CSEA's bargaining 	team was
departmental 	class 	size 	ratios. 	No MOU language had set 	specific
class 	size maximum ratios. 	However, 	there was 	a practice 	that no
classroom would have 	a 	student/teacher 	ratio 	exceeding 	24:1.
CSEA believes 	the practice was 	to enroll 	a maximum of 	24 	students
so as 	to achieve an average daily attendance 	(ADA) 	of 	18.
However, 	administrators 	at 	some 	institutions 	insisted upon the
teachers maintaining 24 	students 	in each 	classroom. 	They would
not 	let 	the natural 	attrition process 	reduce 	the 	student
population in a 	specific 	classroom to a number less 	than 24. 	The
Department 	insists 	that 	a minimum 24 	students 	requirement meant
3 	21.3 	Class 	Size
a. 	It 	is 	the policy of 	the State that 	the
educational 	needs 	of 	its 	students are of
primary 	importance 	taking 	into 	consideration
needs of the staff, 	available facilities,
equipment, 	financial 	resources and other
operational 	needs. 	In adhering to this
policy, 	the State agrees 	to meet and confer
with 	the Union 	over 	the 	impact 	of management
proposed 	changes 	to 	existing 	class 	size
criteria. 	It 	is 	recognized that 	final 	class
size 	determinations 	shall 	be within the
authority and discretion 	of 	management.
5
'
5

24 	students 	continuously 	in 	the 	classroom and that 	CSEA's 	beliefs
regarding 	the effect 	of 	attrition are not 	correct.
The 	state 	sought 	to maintain 	the 	existing 	language 	in 	the
successor MOU. 	On July 23, 	1991, 	CSEA submitted a proposal
limiting 	classroom size 	to a 	specific number. 	The 	state 	rejected
this proposal.
In June 	1992, 	CSEA reformulated its proposal with expanded
provisions, 	once again setting specific class size limits. 	The
state's chief negotiator, 	Dennis Fujii 	(Fujii), 	rejected CSEA's
new proposal.
At 	a June 	26 	negotiating session, 	while discussing 	the
parties' 	class 	size proposals, 	Fujii 	told the CSEA team that 	the
existing MOU language 	gave 	the Department 	the discretion 	to
change 	class 	size after 	it 	gave notice 	to 	the union and met 	and
conferred on the 	impact. 	Fujii also stated, 	at 	that 	session,
that 	the 	state was 	facing severe 	fiscal problems, 	and that 	class
size 	could be 	impacted by 	such problems. 	He 	did not 	state 	that
the 	Department 	had any 	intention 	of 	increasing 	student/teacher
ratios 	in the near future. 	However, 	Richard Hawkins, 	the
Department's 	representative 	on the 	state's bargaining 	team, 	told
CSEA that 	there was 	a possibility of 	an 	increase 	in 	class 	size
during the life of 	the MOU due 	to these 	fiscal problems. 	CSEA's
representative 	responded by 	insisting 	that 	any 	such 	increase
would have 	to be negotiated. 	Both sides were aware 	the 	1992-93
budget 	had not yet been enacted and 	therefore, 	the 	extent 	of 	any
potential 	budget 	cuts were not yet 	known.
6
6

In July, 	CSEA presented another proposal 	on class 	size, 	once
again 	setting 	forth a 	specific 	student/teacher 	ratio. 	The 	state
again 	rejected 	the 	proposal 	and 	countered with a proposal 	to
maintain 	the 	existing 	language.
The 	state budget was 	signed in August 	of 	1992. 	It 	contained
serious departmental budgetary reductions. 	In August 	of 	1992,
members 	of 	CSEA's 	bargaining 	team met 	with 	the Department's
Director, 	James Gomez 	(Gomez). 	He told them that 	increasing
class 	size was 	one 	of 	the 	options 	he was 	looking at 	to address
his 	Department's budget problem. 	He 	stated that 	the Department
of 	Finance was 	telling him to 	increase 	student/teacher ratios, 	as
it 	had 	fiscal 	implications.4 CSEA's 	representatives 	told Gomez
that 	this 	would 	"mean war" 	and 	that 	any 	increases 	would be
unacceptable. 	The 	teachers believed the Department was 	already
violating the 	spirit 	of 	the existing 24:1 practice, 	because 	it
was 	not 	allowing natural 	attrition 	to 	lower 	the 	number of 	inmates
physically in the classroom to 	18, 	as 	the 	teachers believed had
been the practice 	in the past. 	CSEA offered to participate 	in a
joint 	committee with the Department 	to 	explore alternatives 	to a
classroom ratio 	increase.
In September 1992, 	the 	joint 	committee met and prepared a
series 	of 	recommended alternatives. 	These alternatives were
forwarded to Douglas Boyd 	(Boyd), 	the Department's acting chief
4Inmates 	are given time 	off 	of 	their sentences 	for each day
of work they complete. 	Time 	in a 	classroom is 	considered 	"work"
time. 	The more 	"work" 	time a particular inmate earns, 	the
quicker he 	is 	released. 	Early release dates mean 	fewer 	inmates,
which lowers 	expenses 	for 	the Department.
77

of 	education and a member of 	the 	state's Unit 	3 	bargaining team.
Boyd did not 	discuss 	the 	alternatives 	with Gomez 	until 	after 	the
conclusion of 	contract 	negotiations.
On September 21, 	1992, 	the parties met to discuss an inmate
cell 	study program which 	CSEA proposed as 	an alternative 	to 	class
size 	increases. 	This proposal was 	rejected by the Department.
On September 23, 	1992, 	CSEA submitted another class 	size
proposal. 	It was also rejected. 	Eventually, 	other than various
changes 	that are not 	relevant 	to the 	subject 	issue, 	CSEA agreed
to maintain 	the 	existing 	class 	size 	language 	in 	the 	successor
MOU. 	Bargaining concluded on October 7, 	1992, 	when the parties
agreed, 	subject to ratification, 	to a successor MOU.
In mid-October 	Boyd briefed Director Gomez 	regarding 	the
September meetings 	with CSEA and 	the 	October 	7 	negotiating
session. 	At 	that 	time Boyd believed Gomez 	had made no decision
regarding an 	increase 	in 	student/teacher 	ratios.
On October 29, 	1992, 	the Department gave CSEA 30 days notice
that 	it was 	going 	to 	increase 	its 	student/teacher ratios 	to
27:I.5 The Department 	offered to meet 	and confer over the 	impact
such action would have on 	its 	employees. 	At 	the 	time 	the
5The 	"Entire Agreement" 	clause, 	in section 23.1(b) 	of the
MOU 	contains 	the 	following 	language:
. 	. 	. 	The parties recognize that it may
be necessary for the 	State 	to make 	changes 	in
areas within the 	scope of negotiations. 	Where
the 	State 	finds 	it 	necessary to make 	such
changes, 	the State shall notify the Union of
the proposed change 30 	days prior to 	its
proposed 	implementation.
8

Department 	took this 	action, 	the 	successor MOU had been
tentatively approved but 	had not 	yet 	been 	ratified by 	either
side.6 On December 4, 	1992, 	David Tristan, 	deputy director,
institutions 	division, 	notified all 	wardens 	that 	the 	increased
student/teacher 	class 	size was 	to be put 	into effect 	that 	date,
with full 	implementation required by December 31, 	1992.
CSEA 	responded 	to 	this 	increased 	ratio 	notice 	by 	requesting
the Department meet 	and 	confer with 	it 	on the 	issue. 	On
December 8, 	1992, 	it contacted Rick McWilliams, 	the Department of
Personnel Administration's 	(DPA's) 	chief 	of 	labor relations,
requesting specific 	class 	size 	increase 	information. 	In order to
compile 	the 	requested information, 	the Department 	asked each
institution 	to provide 	specified data 	regarding 	the 	impact 	of 	the
increased 	student/teacher 	ratio 	on 	the 	local 	program. 	Janet
Waugh 	(Waugh), 	one of 	the Department's 	labor relations
specialists, 	set up a meeting of 	the parties 	for December 18,
1992. 	She 	notified CSEA the 	requested 	information had been
compiled and would be 	available 	at 	this 	meeting.
On December 14, 	1992, 	CSEA filed this unfair practice
charge. 	It 	also 	filed a grievance 	over the Department's 	action.
Shortly after the December 18, 	1992, 	meeting commenced,
Waugh 	stated 	the Department was 	there 	to meet and 	confer
regarding 	the 	impact 	of 	the Department's unilateral 	increase 	in
6Unit 	3 	employees 	completed the 	ratification process 	on
November 16, 	1992. 	The effective date of 	this 	successor MOU was
November 1, 	1992.
99

the 	student/teacher 	ratio and that 	the 	information 	that 	CSEA
requested was 	in the 	room and available 	for CSEA. 	Gretchen
Seagraves, 	CSEA's 	spokesperson stated that 	they were not 	there 	to
negotiate 	class 	size, 	but 	to discuss 	the unfair practice 	charge
and 	the 	grievance. 	Waugh 	said 	that 	DPA was 	the Department's
legal 	representative 	for 	the unfair practice 	charge 	and 	she 	and
the 	other departmental 	representatives 	were 	not prepared 	to
discuss 	it. 	Seagraves 	stood up and the meeting 	came 	to a halt,
although many of 	the participants 	remained 	in the 	room and
engaged 	in side 	conversations 	on a number 	of 	subjects.
Despite 	being 	informed 	that 	the 	Department 	would have 	the
requested 	information available, 	CSEA's 	representatives 	did not,
at any time, 	ask for it. 	The 	information was 	located in a series
of 	black binders 	on 	the 	negotiations 	table 	throughout 	the
December 18, 	1992, 	meeting. 	CSEA never requested another meeting
regarding the 	class 	size matter, 	nor did it 	ever ask the
Department 	for 	the 	subject 	information.
ISSUES
1. 	Did the Department 	fail 	to negotiate 	in good 	faith when
it 	increased the 	student/teacher ratio, 	thereby violating
subdivisions 	(a), 	(b) 	or 	(c) 	of section 3519?
2. 	Did the Department 	fail 	to provide 	to CSEA information
that was 	necessary and relevant 	for 	it 	to 	represent 	its members,
thereby violating subdivision 	(c) 	of 	section 3519?
10

CONCLUSIONS 	OF 	LAW
Totality 	of 	Conduct
The 	Board 	in 	Pajaro Valley Unified School 	District 	(1978)
PERB Decision No. 	51 	(Pajaro) 	required employers 	to negotiate
with a bona 	fide 	intent 	to 	reach an agreement. 	It 	adopted the
federal 	standard 	of 	determining whether good 	faith bargaining 	has
occurred. 	This 	standard 	is 	called the 	"totality of 	conduct"
test. 	The 	test 	looks 	to the entire 	course of negotiations 	to
determine 	if 	the requisite 	"good faith" 	is present.
With 	regard 	to 	the 	issue 	of 	totality of 	conduct 	the 	record
in this 	case shows 	the following relevant 	factors: 	(1) 	CSEA made
various modifications 	to 	its 	student/teacher ratio proposals,
whereas 	the 	state 	continued 	to propose maintaining 	the previous
MOU language, 	(2) 	DPA negotiator Fujii mentioned at the table,
that 	the 	existing MOU language 	gave 	the Department 	full
discretion to unilaterally modify class 	size, 	although 	it 	did
have to negotiate the impact of 	such modification, 	(3) 	Fujii made
it 	clear that due 	to the ongoing budgetary crisis, 	class 	size
could be 	impacted in the 	future, 	(4) 	Departmental negotiator
Hawkins 	told CSEA, 	at 	the table, 	that 	there was a possibility of
an increase 	in class 	size during the 	life of 	the MOU, 	due 	to
these fiscal problems, 	(5) 	Departmental Director Gomez explained
to 	two 	CSEA negotiators 	he was 	being 	told by 	the Department 	of
Finance to increase class 	size ratios, 	(6) 	the Department
rejected 	several 	CSEA alternatives 	to 	increased 	class 	size,
(7) 	on October 29, 	1992, 	the Department told CSEA of an impending
11

class size increase, 	and 	(8) 	on December 4, 	1992, 	the Department
implemented the 	class 	size 	increase.
With regard to evidentiary factor 	(1), 	supra. 	though the-
employer did not 	change 	its 	position on 	the 	class 	size 	issue
during the negotiations process, 	it was 	only one 	of many issues
the parties were negotiating 	in their attempt 	to 	reach a
successor MOU. 	It 	is 	not 	necessary 	for a party to periodically
change 	its position on a particular 	issue 	in order 	to negotiate
in good faith. 	(Oakland Unified School District 	(1982) 	PERB
Decision No. 	275.)
With regard to evidentiary factors 	(2) 	through 	(5), 	the
Department 	gave 	CSEA notice 	that 	there was 	a possibility of 	an
increase 	in the class 	size 	ratio. 	There was no 	convincing
evidence 	proffered by 	the 	Charging 	Party 	that 	the 	Department 	had
made a decision to 	increase 	class 	size prior to 	the 	time 	it 	told
CSEA of 	the 	impending 	increase. 	Boyd specifically stated that 	he
discussed the 	issue with Gomez 	in the middle 	of October, 	and at
that 	time he believed that 	no decision had been made. 	Granted,
Boyd's 	position with 	the Department makes 	him other 	than an
unbiased chronicler of events. 	However, 	other than an inference
drawn from the 	chronology of 	events, 	there 	is no evidence 	in the
record to 	rebut Boyd's 	statements.
Even 	the 	chronological 	inference 	has 	to be 	examined 	in 	light
of 	the 	total 	budgetary chaos 	state government was 	in during 	the
fall 	of 	1992. 	The budget had been signed over a month late.
Salaries 	and bills 	were being paid with warrants 	instead of
12

checks. 	Every day brought new disasters, 	both real 	and imagined,
to newspapers 	and water coolers 	alike. 	Even after the budget was
enacted, 	and the extent 	of 	the deficit was known, 	each Department
had 	to 	internally examine 	a myriad 	of 	draconian possibilities,
all 	of which were disastrous 	to program credibility. 	A
department 	as 	large as 	Corrections 	is 	not 	an autocratic 	oligarchy
in which 	one 	person arbitrarily wields 	unfettered discretion 	over
all 	aspects 	of 	the agency. 	Below the directorship 	level 	there
are various 	competing interests, 	all 	attempting to get 	their
personal 	agendas 	recognized by the 	higher decision-makers. 	Each
of 	these 	interests 	is 	entitled to an appropriate 	level 	of 	input
into the 	eventual 	decision. 	The budgetary decision-making
process 	requires 	interpersonal 	contacts. 	It 	requires persuasion
and counter persuasion. 	And most of all 	it 	requires 	time.
It 	is 	certainly within possible 	that 	the Department 	did not
make a decision until 	near 	the 	end of 	October to 	increase 	class
size ratios. 	And, 	more importantly, 	there was no evidence
presented 	to prove 	otherwise.
The 	fact 	that 	the Department 	rejected both a 	comprehensive
cell 	study proposal, 	as well 	as a number of 	other proffered
alternatives, 	does not, 	in and of 	itself, 	create an inference
that 	it was bargaining 	in bad 	faith over the 	issue 	of 	class 	size.
There 	could be 	a 	lot 	of 	reasons 	why a 	cell 	study proposal 	would
be 	rejected. 	There was 	no 	credible 	evidence proffered by CSEA
that 	the proposal 	was 	rejected as 	a part 	of a pattern of bad
faith negotiating on the part 	of 	the Department.
13

Nor does 	the 	fact 	that 	the Department did not 	attempt 	to
modify 	the MOU 	to 	reflect 	a 	higher 	student/teacher 	ratio 	suggest
some 	sort 	of bad 	faith bargaining. 	In the existing MOU the
Department 	had 	language 	that 	stated that 	class 	size
determinations were within 	its 	authority. 	It was 	not 	necessary
for it 	to get 	something new to 	increase 	class size ratios, 	it
already had all 	the authority it needed. 	In addition, 	there was
insufficient 	evidence 	to prove 	that 	the Department 	knew it was
going 	to 	increase 	class 	size when negotiations were 	taking place.
Based on all 	of 	the 	foregoing, 	it 	is 	determined that 	there
is 	insufficient 	evidence upon which to 	find that 	the Department,
with regard 	to 	its 	conduct when evaluated vis-a-vis 	the 	totality
of 	conduct test, 	has violated the Act.
Unilateral 	Change 	is 	Per Se 	Bad 	Faith Negotiating
In Pajaro, 	the Board stated that 	there
are certain acts, 	however, 	which have such a
potential 	to 	frustrate negotiations 	and 	to
undermine 	the 	exclusivity of 	the bargaining
agent 	that 	they are 	held unlawful 	without
any determination 	of 	subjective 	bad 	faith
on the part 	of 	the 	employer. 	See NLRB v. 	Katz
(1962) 	369 U.S. 	736 	[50 LRRM 2177]-.
In the present 	case, 	the employer has admitted that 	it
unilaterally 	increased the 	student/teacher 	ratio 	to 	27:1.
However, 	the MOU permitted the Department 	to unilaterally modify
this 	ratio. 	The 	Charging 	Party makes much of 	the 	fact 	that 	the
parties were without 	a MOU from July 	1 	through November 1, 	and 	it
was 	informed 	of 	the 	impending 	increase by 	the Department 	on
October 29, 	1992. 	It 	insists 	that 	this prevented the Department
14

from using 	the MOU as 	justification 	for 	such unilateral
modification. 	However, 	this argument 	ignores the 	fact 	that 	the
modification was 	not 	implemented until December 4, 	some 	34 	days
after 	the 	new MOU came 	into 	effect.
CSEA based much of 	its persuasive argument 	on the horrors 	of
unilateral modifications 	and the deleterious 	effect 	it 	has 	on the
bargaining relationship. 	It 	is 	correct 	in its assessment 	of 	this
type of action. 	However, 	in the instant 	case there was no
improper unilateral modification. 	The Department was 	given the
authority 	to 	increase 	the 	student/teacher 	classroom ratio by 	the
parties' 	MOU. 	Therefore, 	it did not 	improperly modify a term or
condition of 	employment.
CSEA's 	Interpretation of 	MOU section 21.3(a)
CSEA argues 	that 	the subject MOU language 	(see fn. 	3, 	p. 	5)
does 	not 	give 	the 	employer 	the 	right 	to unilaterally modify 	class
size ratios. 	Its argument 	is 	succinctly set 	forth 	in its 	closing
brief, 	and is, 	as follows:
Second, 	the 	contract 	language which CDC
[Department] 	relies upon to support 	its
waiver claim, 	Section 21.3(a) 	of the
Unit 3 MOU . 	. 	. 	provides no clear and
unmistakable 	language 	that 	CSEA waived
its 	right 	to negotiate. 	Section 21.3(a)
begins by stating 	that 	it 	is 	the policy
of 	the 	State 	that various 	criteria be
considered 	in determining 	class 	size 	ratios.
The 	second 	sentence 	of 	section 21.3(a)
provides 	no 	clear and unmistakable 	language
suggesting 	that 	CSEA waived any 	rights 	to
negotiate. 	The 	third sentence 	of 	Section
21.3(a) 	recognizes 	that 	final 	class size
determinations 	shall 	be within 	the 	authority
and discretion of management. 	At best, 	this
sentence has ambiguous language, 	for it 	is
15

not 	clear whether 	the phrase 	"class 	size
determinations" 	refers 	to determinations 	over
the appropriate 	criteria to consider, 	or
ultimate 	determinations 	over 	class 	size 	ratios.
At minimum, 	this 	language affirms 	that no
determinations will 	be 	final 	until 	the parties
have had an opportunity to negotiate. 	.
The 	third sentence of 	section 21.3(a) 	of 	the MOU is not
ambiguous. 	It 	clearly states 	that 	although the previous 	sentence
gives 	CSEA a 	right 	to meet 	and 	confer over the 	impact 	of
management proposed changes 	to existing 	class 	size 	criteria, 	the
"final 	class 	size determinations 	shall 	be within the 	authority
and discretion of management." 	If 	this 	sentence does 	not 	give
management 	the 	right 	to unilaterally set 	class 	ratios, 	what does
it 	do? 	It 	is 	clear 	from the plain meaning of 	the 	third sentence
of MOU section 21.3(a) 	that 	the 	employee 	organization at 	the 	time
it agreed to 	include 	such language, 	was aware 	it was giving the
employer the 	right 	to unilaterally set 	class 	size 	ratios.
Under the 	circumstances 	set 	forth above, 	it 	is
determined 	that 	the 	Department 	did not 	unilaterally modify a 	term
or condition of employment. 	Therefore, 	it did not violate
subdivision 	(c) 	of section 3519.
Failure 	to 	Provide 	Information
There are 	two elements 	to a 	"failure 	to provide 	information"
charge. 	The 	first 	is 	that 	it must be determined whether the
requested material 	was 	necessary and relevant 	to 	CSEA's 	duty 	to
represent 	its members.
The 	information 	requested 	concerned 	the Department's 	class
size 	statistics. 	The disputed 	issues between CSEA and the
16

Department 	centered 	on 	the Department's 	decision 	to 	increase
class 	size 	in 	its prisons 	and 	institutions. 	Any 	information
regarding 	the present 	status 	of 	class 	size was 	certainly
necessary and 	relevant 	to 	CSEA's 	duty of 	representation.
The 	second necessary 	element 	is 	whether 	CSEA made 	a 	clear
and unconditional 	demand upon 	the Department 	for 	such material.
It 	is 	undisputed 	that 	such a demand was made 	and 	received.
We have, 	in this 	case, 	an additional 	issue that 	is 	subsumed
within the 	second element. 	Once 	the demand was made and the
material made available 	for presentation, 	does 	the Department
have a duty to deliver it 	to CSEA?
The 	facts 	show 	that 	the 	information was 	requested by 	CSEA on
December 	8. 	On December 	14 	CSEA filed 	its 	charge 	complaining
about 	not 	having 	received 	the 	subject 	information. 	On December
18 	the parties met 	and CSEA was 	told the material was 	in the 	room
and 	ready to be 	given to 	them. 	CSEA left 	the meeting without
requesting or picking up 	the material. 	To date 	it 	has 	failed to
go back and 	retrieve 	the material.
Certainly, 	a party 	that 	has 	requested 	specified 	information,
and has been told that 	it 	is available 	on a 	table 	in 	front 	of 	it,
has 	an obligation to accept possession of 	such data. 	Absent 	such
acceptance, 	it 	cannot be heard to complain about not having
received such information. 	The Department 	is 	only under an
obligation to locate, 	compile and tender the 	information. 	In
this 	case 	it met 	this 	obligation.
17

Under the 	circumstances 	set 	forth above, 	it 	is determined
that 	the Department 	did not 	fail 	to provide 	CSEA information
necessary for it 	to represent 	its members. 	Therefore, 	it did not
violate 	subdivision 	(c) 	of 	section 3519 	with regard to CSEA's
request 	for 	the 	specified 	information.
SUMMARY
Based on the 	foregoing 	findings 	of 	fact, 	conclusions 	of 	law
and a thorough examination of 	the 	entire 	record, 	it 	is 	determined
that 	there 	is 	insufficient 	evidence upon which 	to 	find 	that 	the
Department has violated the Act. 	Therefore, 	the 	charge and its
accompanying 	complaint 	must 	be 	dismissed.
PROPOSED 	ORDER
Upon the 	foregoing 	findings 	of 	fact, 	conclusions 	of 	law and
the entire 	record in this 	case, 	it 	is hereby ordered that 	the
complaint 	and 	the 	underlying unfair practice 	charge 	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 	Proposed Decision. 	In accordance with PERB Regulations,
this 	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 	(5:00 p.m.) 	on the 	last day set 	for
18

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 of Civ. 	Proc, 	section 1013 	shall apply.) 	Any 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.)
ALLBN R. 	LINK
Administrative 	Law Judge
19