State of California (Department of Corrections) * * * OVERRULED IN PART by multiple decisions, as recognized in State of California (Department of Corrections and Rehabilitation) (2024) PERB Decision No. 2926-S, pp. 16-19 & fn. 11 * * * (PERB 1100SA)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA STATE 	EMPLOYEES'
ASSOCIATION, 	SEIU LOCAL 1000,
AFL-CIO,
Charging 	Party,
v.
STATE 	OF 	CALIFORNIA 	(DEPARTMENT
OF 	CORRECTIONS),
Respondent.
)
)
) 	Case No. 	SF-CE-105-S
Request 	for Reconsideration
PERB Decision No. 	1100-S
PERB Decision No. 	ll00a-S
August 	30, 	1995
)
)
)
)
)
)
)
)
)
Appearances: 	California State Employees' 	Association by Mark
DeBoer, 	Attorney, 	for California State Employees' 	Association,
SEIU Local 	1000, 	AFL-CIO; 	State of California 	(Department of
Personnel Administration) 	by Paul M. 	Starkey, 	Attorney, 	for State
of California 	(Department of Corrections).
Before Carlyle, 	Garcia and Caffrey, 	Members.
DECISION
CAFFREY, 	Member: 	This 	case is before the Public Employment
Relations 	Board 	(PERB or Board) 	on a 	request 	for reconsideration
of 	the Board's 	decision 	in State 	of 	California 	(Department 	of
Corrections) 	(1995) 	PERB Decision No. 	1100-S 	(Corrections) 	filed
by the California State Employees' 	Association, 	SEIU Local 	1000,
AFL-CIO 	(CSEA).
BACKGROUND
The unfair practice 	charge 	in this 	case, 	originally 	filed by
CSEA in December 	1991, 	alleged that 	the State of 	California
(State) violated section 3519(a), 	(b), 	(c) 	and 	(d) 	of the
~
~
* * * OVERRULED IN PART by multiple decisions, as recognized in State
of California (Department of Corrections and Rehabilitation) (2024)
PERB Decision No. 2926-S, p. 18 * * *

Ralph C. 	Dills Act 	(Dills Act)1 by revising and downgrading 	the
performance 	evaluation of 	an employee who was 	a 	job 	steward and
member 	of 	the 	CSEA negotiating 	team. 	After 	receiving assurances
from the 	State 	that 	grievances 	filed by CSEA in 	response 	to 	the
State's 	actions 	would be 	processed 	through arbitration 	if
necessary, 	CSEA, 	in March 1992, 	withdrew all allegations except
the 	allegation 	that 	by 	issuing 	the 	revised 	evaluation 	to 	the
employee, 	the State violated Dills Act section 3519(b).2
A PERB 	administrative 	law judge 	(ALJ) 	denied 	the 	State's
motion to defer the alleged violation to 	the parties' 	contractual
grievance 	and arbitration procedure, 	and 	concluded 	that 	CSEA
failed 	to prove 	that 	the 	State's 	action against 	the 	employee
denied CSEA the 	right 	to 	represent 	its members 	in violation of
Dills Act 	section 3519(b). 	The ALJ dismissed CSEA's unfair
practice 	charge.
The 	Board 	reversed 	the ALJ's 	jurisdictional 	determination.
In dismissing and deferring 	the 	charge 	to 	the parties' 	grievance
and arbitration procedure, 	the 	Board majority 	concluded 	that 	the
alleged unlawful 	conduct 	was 	arguably prohibited by 	the 	parties'
collective bargaining agreement 	(CBA), 	and subject 	to the CBA's
1The Dills Act 	is 	codified at 	Government 	Code 	section 	3512
et 	seq. 	Unless 	otherwise 	indicated, 	all 	statutory references
herein are 	to the Government 	Code.
2Dills Act 	section 3519 	states, 	in pertinent part:
It 	shall be unlawful 	for the 	state to do any
of 	the 	following:
(b) 	Deny to employee 	organizations 	rights
guaranteed 	to 	them by 	this 	chapter.
22

grievance and arbitration procedure. 	In the 	lead opinion, 	Chair
Blair and Member Caffrey 	interpreted Dills Act 	section 	3514.5(a)3
to 	conclude 	that 	the 	statutory 	limitation on 	the 	Board's 	dispute
resolution jurisdiction requires 	it 	to defer all 	alleged
violations 	which are based on 	conduct 	prohibited by 	the parties'
CBA, 	if 	the 	contractual 	grievance procedure 	is applicable 	to 	that
conduct 	and 	ends 	in binding arbitration. 	Member Garcia 	concurred
in the deferral 	of 	the 	charge, 	concluding that 	the parties
clearly 	intended 	the 	dispute 	to be 	subject 	to 	the 	grievance 	and
arbitration procedure 	contained 	in 	their 	CBA. 	Member Garcia
disagreed with 	the 	interpretation of 	PERB's 	statutory
jurisdiction which was 	included 	in 	the 	lead opinion.
Member Carlyle 	dissented, 	finding 	that 	the Board had
jurisdiction over the 	subject unfair practice 	charge, 	and 	finding
that 	the 	State violated Dills Act 	section 3519(b) 	by 	its 	conduct.
CSEA'S 	REQUEST 	FOR 	RECONSIDERATION
CSEA expressly 	adopts 	the 	dissenting 	opinion 	of 	Member
Carlyle, 	and offers 	two 	"Exceptions," 	as 	the basis 	of 	its request
for 	reconsideration.
. :3Section 3514.5(a) 	states, 	in pertinent part:
(a) 	Any employee, 	employee organization, 	or
employer 	shall 	have 	the 	right 	to 	file 	an
unfair practice 	charge, 	except 	that 	the board
shall not 	. 	. 	. 	issue a complaint against
conduct 	also prohibited by the provisions 	of
the 	agreement between the parties 	until 	the
grievance machinery of 	the agreement, 	if 	it
exists and covers 	the matter at 	issue, 	has
been exhausted, 	either by settlement 	or
binding 	arbitration.
3

CSEA's 	first 	exception 	challenges 	the 	"implied 	fact" 	and
"implied 	finding" 	of 	the 	Board decision 	that 	the alleged unlawful
conduct 	in this 	case 	is arguably prohibited by the parties' 	CBA.
CSEA asserts 	that 	there 	is 	nothing 	in 	the 	CBA which prohibits 	the
State 	from denying CSEA its 	rights under the Dills Act. 	The
Board's conclusion, 	therefore, 	constitutes prejudicial error.
CSEA asserts 	that 	deferral 	of 	this matter deprives 	it 	of 	its
independent 	statutory rights, 	and is an 	"abdication of
jurisdiction" 	by which the Board 	"will 	have 	ceded its 	exclusive,
preemptive 	jurisdiction 	over 	these 	disputes 	to a private party."
Further, 	CSEA argues 	that deferral 	has 	the effect 	of denying 	it
the 	opportunity 	to 	seek 	the 	extraordinary 	remedy 	of 	injunctive
relief 	from PERB when 	its 	rights 	are violated.
CSEA also 	excepts 	to 	the procedures 	employed by 	the 	Board 	in
the processing of 	Corrections.
THE 	STATE'S 	RESPONSE
The 	State 	supports 	the Board's 	decision in Corrections,
asserting that 	the 	complained of 	conduct 	in this 	case 	is 	arguably
prohibited by various 	sections 	of 	the parties' 	CBA. 	The 	State
argues 	that 	CSEA's 	characterization of 	the Board's 	deferral 	of
this matter as an 	"abdication of 	jurisdiction" 	is 	incorrect,
because 	it 	ignores 	the 	statutory preference 	for arbitration of
disputes. 	Furthermore, 	CSEA's argument does not 	recognize 	the
Board's 	repugnancy 	review authority 	or 	the 	futility 	exception 	to
the Board's 	jurisdictional 	limitation which 	is 	contained 	in 	the
Dills Act.
44

The 	State 	also 	opposes 	CSEA's 	challenge 	to 	the Board's
procedures 	in this 	case.
In summary, 	the State asserts 	that 	CSEA's 	request 	fails 	to
meet 	the 	Board's 	standard 	for 	reconsideration 	of 	a Board
decision.
DISCUSSION
PERB Regulation 324104 permits 	any party to a decision of
the 	Board 	itself 	to 	request 	the 	Board 	to 	reconsider 	that
decision. 	However, 	section 32410(a) 	states that:
The 	grounds 	for 	requesting 	reconsideration
are 	limited 	to 	claims 	that 	the 	decision of
the Board 	itself 	contains 	prejudicial 	errors
of 	fact, 	or newly discovered evidence or law
which was 	not 	previously available 	and 	could
not 	have 	been discovered with 	the 	exercise 	of
reasonable 	diligence.
The 	Board has 	adopted this 	strict, 	narrow standard 	for
reconsideration requests 	specifically to avoid the use 	of 	the
reconsideration process 	to 	reargue 	or 	relitigate 	issues 	which
have already been decided. 	In numerous 	reconsideration cases,
the Board has 	reiterated this 	policy, 	declining 	to 	reconsider
arguments 	previously 	offered by parties 	and 	rejected 	in 	the
underlying decision. 	(California State University 	(1995) 	PERB
Decision No. 	1093a-H; 	California State Employees Association.
Local 	1000 	(Janowicz) 	(1994) 	PERB Decision No. 	1043a-S;
California 	Faculty Association 	(Wang) 	(1988) 	PERB Decision
4PERB 	regulations 	are 	codified at 	California 	Code 	of
Regulations, 	title 8, 	section 31001 et seq.
55

No. 	692a-H; 	Tustin Unified School District 	(1987) 	PERB Decision
No. 	626a; 	Riverside Unified School District 	(1987) 	PERB Decision
No. 	622a.)
CSEA's 	first 	exception disagrees 	with the 	conclusion of 	the
Board majority 	that 	this 	matter must 	be 	deferred 	to 	the 	grievance
and arbitration procedure 	included in the parties' 	CBA. 	The
parties 	submitted argument 	on this 	issue 	to 	the ALJ, 	and to 	the
Board 	itself. 	In considering this 	issue, 	both the 	lead opinion
and Member Garcia's 	concurrence 	refer 	to 	specific 	articles 	within
the 	CBA in 	concluding 	that 	the unfair practice 	charge must 	be
dismissed and deferred. 	CSEA characterizes 	this 	finding as 	a
prejudicial 	error, 	apparently 	choosing this 	language 	in an
attempt 	to 	conform to 	the Board's 	reconsideration standard. 	In
fact, 	the 	issue of 	PERB's 	jurisdiction in this 	case has been
thoroughly 	litigated by 	the 	parties 	and 	considered by 	the 	Board,
and CSEA simply disagrees 	with 	the 	Board's 	decision. 	The 	Board's
decision with 	regard 	to 	its 	jurisdiction does 	not 	constitute
prejudicial 	error of 	fact. 	Consequently, 	this exception fails 	to
meet 	the 	Board's 	standard 	for 	reconsideration 	requests.
CSEA is unclear as 	to how its 	second exception, 	involving
the Board's processing of 	this 	case, 	supports 	its 	request 	for
reconsideration. 	Accordingly, 	this 	exception does 	not meet 	the
Board's 	reconsideration 	standard.
CSEA's 	request 	for reconsideration of 	the 	Board's 	decision
in Corrections 	fails 	to 	identify any prejudicial 	error of 	fact 	or
66

new evidence 	or law as 	required by PERB Regulation 32410(a), 	and
therefore, 	is without merit.
ORDER
The 	request 	for reconsideration of 	the Board's 	decision 	in
State of 	California 	(Department 	of Corrections) 	(1995) 	PERB
Decision No. 	1100-S 	is hereby DENIED.
Member Garcia's 	concurrence begins 	on page 	8.
Member Carlyle's 	dissent begins 	on page 	9.
77

GARCIA, 	Member, 	concurring: 	I concur in the denial of
reconsideration only because 	the 	request 	does 	not meet 	the
requirements 	of 	the 	Public 	Employment 	Relations 	Board's 	(PERB 	or
Board) 	regulation, 	which does not allow reconsideration for
errors 	of 	law. 	However, 	I write separately to reiterate my
belief 	that 	the 	decision 	in State 	of 	California 	(Department 	of
Corrections) 	(1995) 	PERB Decision No. 	1100 	contains legal error.
Although 	I 	agreed with the majority that 	deferral 	was
appropriate, 	I dissented from the Board majority's 	rationale,
legal 	analysis 	and 	irregular attempt 	to 	change policy. 	In
effect, 	the majority opinion adopted a mandatory arbitration
policy, 	weakening 	the 	statutory rights 	of 	employee 	organizations
and 	overturning 	sound PERB precedent 	established 	in 	State 	of
California 	(Department 	of 	Forestry and Fire 	Protection) 	(1989)
PERB Decision Nos. 	734-S and 734a-S and its progeny.
It 	is 	clear 	from the 	facts 	of 	this 	case and 	the 	contractual
language agreed 	to 	that 	the parties 	intended to 	resolve 	this 	type
of 	dispute 	through a grievance procedure. 	I arrived at 	that
conclusion because 	the 	grievance 	agreement 	covered 	the matter at
issue. 	Under Dills Act section 3514.5(a)(2), 	PERB should have
deferred this 	case, 	placing 	it 	in abeyance pending exhaustion of
the grievance process without 	settlement. 	Instead, 	the PERB
decision 	converts 	the 	clear 	language 	of 	the 	arbitration option
into a mandate. 	Unfortunately, 	our regulation does not permit
further 	review for 	that 	error of 	law.
88

CARLYLE, 	Member, 	dissenting: 	I dissent and would grant the
request 	for 	reconsideration 	filed by 	the 	California 	State
Employees Association, 	SEIU Local 	1000, 	AFL-CIO 	(CSEA) 	to the
decision 	of 	the 	Public 	Employment 	Relations 	Board 	(PERB 	or Board)
in State of California 	(Department of Corrections) 	(1995) 	PERB
Decision No. 	1100-S 	(Corrections). 	Further, 	I would reschedule
the matter and hold another 	oral 	argument.
As 	noted 	in the 	lead opinion, 	PERB Regulation 32410 	permits
any party 	to 	a 	decision 	of 	the 	Board 	itself 	to 	request 	the 	Board
to reconsider that decision. 	Section 32410(a) 	states, 	in part,
that:
The 	grounds 	for 	requesting 	reconsideration
are 	limited to 	claims 	that 	the 	decision of
the 	Board 	itself 	contains 	prejudicial 	errors
of 	fact, 	or newly discovered evidence 	or law
which was 	not 	previously available 	and 	could
not 	have 	been discovered with 	the 	exercise 	of
reasonable 	diligence.
CSEA claims 	two grounds 	for reconsideration. 	It 	first
claims 	that 	the 	Board 	committed prejudicial 	error 	of 	fact 	because
the 	State 	of 	California 	(State) 	is 	not 	arguably prohibited by the
provisions 	of 	the 	agreement 	between 	the parties 	from violating
CSEA's 	statutory right 	to 	represent 	its members 	as 	set 	forth 	in
section 3519(b) 	of the Ralph C. 	Dills Act 	(Dills Act).1
In order 	for the Board to determine whether or not 	it 	has
jurisdiction over CSEA's 	complaint, 	it must 	first make a 	factual
1Dills 	Act 	section 3519 	states, 	in pertinent part:	pills
It 	shall 	be unlawful 	for the 	state to do any
of 	the 	following:
(b) 	Deny to employee organizations 	rights
guaranteed 	to 	them by this 	chapter.
99

determination concerning one 	or more 	of 	the provisions 	of 	the
agreement between the parties, 	that 	is, 	does one or more of 	the
provisions 	of 	the 	agreement 	arguably prohibit 	the 	State 	from
violating CSEA's 	3519(b) 	statutory 	(Dills Act) 	rights? 	If the
answer 	is yes 	and 	the 	contractual 	grievance procedure 	ends 	in
binding arbitration, 	then the matter is deferred. 	If 	the answer
is 	no, 	then the matter is 	retained and resolved at 	PERB.
The 	lead 	opinion glosses 	over 	this 	critical 	factual
necessity and 	seems 	to mischaracterize 	CSEA's 	position as 	one 	of
disagreeing with 	the 	Board's 	decision on 	the 	issue 	of 	PERB's
jurisdiction, 	concluding 	that 	"The 	Board's 	decision with regard
to 	its 	jurisdiction does 	not 	constitute prejudicial 	error of
fact." 	Is 	that because 	the 	lead opinion 	concludes 	that
jurisdiction is 	solely a 	"legal" 	issue? 	Or is 	it because the
lead 	opinion 	concludes 	that 	there 	are 	specific 	articles 	in 	the
subject 	agreement 	which arguably prohibit 	the 	State 	from
violating CSEA's 	3519(b) 	statutory rights? 	If 	it 	is 	the 	former,
it 	is 	clearly wrong because 	of 	the 	aforementioned 	factual
determination which must 	be made before 	such a 	jurisdictional
decision can be 	rendered. 	If 	it 	is 	the latter, 	it 	is also wrong
because 	such 	specific 	articles 	simply do not 	exist.
The 	lead opinion states 	that, 	"both the 	lead opinion and
Member Garcia's 	concurrence 	[in 	Corrections] 	refer 	to 	specific
articles 	within the 	[collective bargaining agreement] 	in
concluding 	that 	the unfair practice 	charge must 	be 	dismissed and
deferred." 	That 	is, 	each opinion 	(lead and concurrence) 	cite
specific 	articles 	which 	contain 	language 	arguably prohibiting 	the
10

State 	from violating CSEA's 	3519(b) 	statutory 	(Dills Act) 	rights.
Let's 	take 	each opinion and look at 	the 	"specific articles"
referenced and 	see 	for 	ourselves.
In Member Garcia's 	concurrence 	in Corrections, 	he 	refers 	to
only two specific articles. 	6.1(a) 	and 6.2(a). 	These two
articles 	state as 	follows:
Article 	6.1(a) 	states: 	This 	grievance procedure
shall 	be 	used 	to process 	and 	resolve
grievances 	arising under 	this 	Contract
and 	employment-related 	complaints.
Article 	6.2 (a) 	states: 	A grievance 	is a dispute
of 	one or more employees, 	or a dispute
between the State and the Union, 	involving
the interpretation, 	application, 	or
enforcement 	of 	the 	terms 	of 	this 	contract.
It 	should be 	obvious 	that 	neither 	specific 	article 	referred
to 	in Member Garcia's 	concurrence 	even 	remotely addresses 	and
resolves 	the 	issue 	of whether or not 	the State 	is arguably
prohibited 	from violating CSEA's 	3519(b) 	statutory rights.
The 	lead opinion 	in Corrections 	also 	refers 	to 	only 	two
specific articles. 	Article 	5, 	section 5.5 	and Article 2,
section 2.8.
Article 	5, 	"General 	Provisions," 	section 5.5 	states:
The 	State and CSEA Local 	1000 	shall 	be
prohibited 	from 	imposing 	or 	threatening
to 	impost 	reprisals 	by discriminating
or 	threatening 	to 	discriminate 	against
employees. 	or otherwise 	interfering with,
restraining, 	or coercing employees because
of 	the 	exercise 	of 	their rights under
Ralph C. 	Dills Act 	or any right 	given by this
contract. 	The principles 	of agency shall be
liberally 	construed. 	[Emphasis 	added.]
Article 2, 	"Union Representation Rights," 	section 2.8 	states:
The 	State 	shall 	be prohibited 	from imposing
11

or threatening to 	impose 	reprisals, 	from
discriminating 	or 	threatening 	to 	discriminate
against Union stewards, 	or otherwise
interfering with, 	restraining, 	or coercing
Union stewards because 	of 	the 	exercise 	of 	any
rights 	given by 	this 	contract. 	[Emphasis 	added.]
Article 	5, 	section 	5.5 	protects 	employees 	from both 	the
- -
State 	and CSEA for exercising 	their 	(the 	employees') 	rights 	under
both the Dills Act 	or the 	contract. 	It has 	nothing to do with
whether or not 	the 	State 	can violate 	CSEA's 	3519(b) 	statutory
(Dills Act) 	rights.
Article 	2, 	section 2.8 	protects union stewards 	from the
State 	for 	the 	"exercise 	of 	any 	rights 	given by 	this 	contract."
Once again, 	it has 	nothing to do with whether or not 	the 	State
can violate the CSEA's 3519(b) 	statutory 	(Dills Act) 	rights. 	In
fact, 	section 2.8 	specifically omits 	any reference 	to 	the Dills
Act.
None 	of 	the 	four referenced specific articles 	in the
collective 	bargaining 	agreement 	relied upon by 	the 	lead 	opinion
and Member Garcia's 	concurrence 	in 	Corrections 	and now relied
upon 	in denying 	CSEA's 	request 	for 	reconsideration 	can 	support 	a
factual 	determination 	that 	the 	provisions 	of 	said agreement
between 	the 	State 	and CSEA arguably prohibit 	the 	former 	from
violating 	the 	statutory representation rights 	of 	the 	latter. 	As
such, 	this 	matter 	should have been 	retained and heard and decided
on the merits by PERB. 	Accordingly, 	CSEA has demonstrated
prejudicial 	errors 	of 	fact 	by 	the majority 	in 	factually
concluding 	to 	the 	contrary and 	CSEA's 	request 	for 	reconsideration
should be 	granted.
12

The 	second 	ground 	claimed by 	CSEA 	involves 	the 	processing
procedures 	utilized 	in 	rendering 	the majority 	opinion 	in
Corrections. 	These procedures 	have been well 	documented
(Corrections, 	fn. 	1 of dissent at p. 	26) 	and there is no need to
repeat 	them again.
PERB 	case 	law 	is unclear 	relative 	to 	the definition of
"newly discovered evidence 	. 	. 	. 	which was not previously
available 	and 	could not 	have been discovered with 	the 	exercise 	of
reasonable diligence." 	If 	this 	standard means 	that 	the newly
discovered matter 	in 	question must 	have 	been previously unknown
to 	the parties 	and 	the Board deciding 	the 	case, 	then CSEA has
failed to meet 	this 	test. 	If 	this 	standard applies 	only to 	the
parties, 	then CSEA has 	submitted evidence which meets 	this 	test
and the question 	then goes 	to 	its persuasiveness.
Since 	I 	would grant 	reconsideration based upon 	CSEA's
identification of prejudicial 	errors 	of 	fact 	in the majority
opinion 	in Corrections as previously noted herein, 	it 	is not
necessary to 	resolve 	this 	second ground at 	this 	time. 	However,
as 	a 	statutorily 	created 	independent 	quasi-judicial 	appellate
body, 	it 	is not 	only crucial 	that 	this Board be 	fair, 	but 	that 	it
ensure the appearance of 	fairness. 	To that 	end, 	I would
reschedule 	this 	matter and hold another 	oral 	argument 	since 	the
parties 	are 	entitled 	to have 	their 	case 	decided by 	those 	who
attend the hearing. 	To do otherwise, 	in the words 	of CSEA, 	means
a 	result 	which 	"just 	does 	not 	appear 	fair."
13