State of California (Department of Corrections) (California Correctional Peace Officers Association) (PERB 1107S)

" . ..
STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA CORRECTIONAL 	PEACE
OFFICERS ASSOCIATION,
Charging 	Party,
v.
STATE OF 	CALIFORNIA 	(DEPARTMENT
OF 	CORRECTIONS),
Respondent.
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) 	Case No. 	S-CE-509-S
PERB Decision No. 	1107-S
May 	19, 	1995
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Appearances: 	Jeffrey A. 	Diamond, 	Attorney, 	for California
Correctional 	Peace Officers Association; 	State of California
(Department 	of 	Personnel Administration) 	by Roy J. 	Chastain,
Labor Relations 	Counsel, 	for the State 	of 	California 	(Department
of 	Corrections).
Before Blair, 	Chair; 	Garcia and Caffrey, 	Members.
DECISION
BLAIR, 	Chair: 	This 	case 	is before the Public Employment
Relations 	Board 	(PERB or Board) 	on exceptions 	filed by the 	State
of California 	(Department 	of Corrections) 	(State) 	to the proposed
decision of a PERB administrative 	law judge 	(ALJ). 	In his
decision, 	the ALJ 	found that 	the 	State violated 	section 3519(b)
of the Ralph C. 	Dills Act 	(Dills Act)1 when it dismissed
Correctional Officer David P. 	Prasinos 	(Prasinos).
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:
(b) 	Deny to employee organizations 	rights
guaranteed 	to 	them by 	this 	chapter.

The Board has 	reviewed the 	entire 	record 	in 	this 	case,
including 	the proposed decision, 	the 	hearing transcript,
exhibits, 	arbitrator's 	opinion and award, 	the State's 	exceptions
and 	the 	response 	thereto 	filed by 	the 	California 	Correctional
Peace 	Officers 	Association 	(CCPOA).2 In accordance with 	the
following discussion, 	the Board hereby sets 	aside 	the ALJ's
proposed decision and dismisses 	the 	complaint 	and unfair practice
charge 	and defers 	to 	the arbitrator's 	award as modified and
implemented by the parties' 	settlement agreement.
PROCEDURAL 	HISTORY
On July 29, 	1991, 	CCPOA filed an unfair practice 	charge
against 	the State. 	The 	charge alleged violations 	of Dills Act
section 3519(b) 	and 	(d). 	On September 12, 	1991, 	CCPOA withdrew
that part 	of 	its 	charge which alleged a violation of Dills Act
section 3519(d).
After an investigation of 	the 	charge, 	the 	PERB General
Counsel's Office 	issued a complaint on September 13, 	1991,
alleging 	that 	the 	State's 	dismissal 	of 	Prasinos 	denied 	CCPOA
the 	right 	to 	represent 	its members 	in violation of Dills Act
section 3519(b).
Informal 	conferences were held on October 10 and 21, 	1991,
in an attempt 	to 	reach voluntary settlement. 	The parties were
unsuccessful 	in 	settling 	their dispute.
2The 	State 	and CCPOA requested 	oral 	argument 	before 	the
Board. 	The Board denied the 	request 	for oral 	argument 	on May 2,
1995.
22

On October 25, 	1991, 	pursuant 	to a joint 	request by the
parties, 	the 	case was placed in abeyance pending completion of
the grievance 	resolution procedure.
On December 4, 	1991, 	the State 	filed a motion to dismiss
the 	case 	for lack of 	jurisdiction and deferral 	to 	the parties'
grievance 	and arbitration procedure. 	The ALJ denied 	the motion
to dismiss on December 10, 	1991.
On December 11, 	1991, 	the State 	filed an appeal 	of 	the ALJ's
denial 	of 	its motion and 	requested 	that 	the 	Board 	stay 	the 	formal
hearing scheduled for December 17, 	1991. 	On December 16, 	1991,
the Board 	issued State 	of 	California 	(Department 	of 	Corrections)
(1991) 	PERB Order No. 	Ad-227-S which stayed the hearing pending
resolution of 	the State's appeal.
CCPOA opposed 	the 	State's 	appeal 	and 	requested 	oral 	argument
before 	the Board. 	The Board heard oral 	argument 	on March 	10,
1992. 	On April 	9, 	1992, 	the Board issued State of California
(Department of Corrections) 	(1992) 	PERB Order No. Ad-231-S,
denying 	the 	State's appeal. 	In affirming the ALJ's denial 	of
the State's motion to dismiss 	and defer 	for lack of 	jurisdiction,
the Board applied 	the pre-arbitration deferral 	standard 	set 	out
in Lake Elsinore School District 	(1987) 	PERB Decision No. 	646.
On May 8, 	1992, 	the State 	filed a request 	for a stay and
a petition 	for review of 	State 	of 	California 	(Department 	of
Corrections). 	supra. 	PERB Order No. 	Ad-231-S with the Third
District 	Court 	of Appeal. 	PERB opposed 	the petition asserting
that 	the 	administrative decision was 	not 	a 	final 	order of 	the
33

Board which 	could be appealed. 	The petition was 	summarily denied
by the Third District Court 	of Appeal 	on May 29, 	1992.
The 	formal 	hearing 	in this 	case was 	held on June 	10-11,
July 21-22, 	and September 22, 	1992. 	After an extended briefing
schedule, 	the proposed decision was 	issued on October 14, 	1993.
FACTUAL 	BACKGROUND
Prasinos 	was 	employed as 	a 	correctional 	officer 	for
approximately 	five years 	at 	the Mule 	Creek 	State 	Prison.
During the period of July 30, 	1990 	to January 14, 	1991, 	Prasinos
was assigned to Building 	9 	as 	the 	control 	booth officer on
third watch 	(2:30 p.m. 	to 10:30 p.m.). 	Correctional Officers
Francis C. 	Meister 	(Meister) 	and Joseph J. 	Cuevas 	(Cuevas) 	were
the 	regularly-assigned 	third watch 	floor 	officers 	in Building 	9.
The 	floor officers are 	in charge of 	the building. 	They
maintain 	order 	in 	the building and are 	responsible 	for direct
custody and 	control 	of 	the 	inmates. 	The 	control booth officer
provides 	security 	for both 	the building and the 	floor officers.
The 	control 	booth officer 	controls 	all 	the 	electrical 	cell 	and
entrance doors, 	gives 	instructions 	to the 	inmates and provides
rifle 	coverage 	in support 	of 	the 	floor officers.
On January 8, 	1991, 	Prasinos 	received a notice of
investigatory interview. 	On January 13, 	1991, 	Prasinos was
reassigned from third watch, 	Building 9, 	to second watch,
Building 8, 	as a floor officer.
On January 16, 	1991, 	a formal 	investigatory interview was
held concerning 	several 	incidents 	involving 	Prasinos' 	conduct.
44

These 	incidents 	involved 	eating 	state 	food which 	is 	provided 	for
inmates who are 	confined to quarters; 	accepting 	food, 	candy and
sodas 	from inmates; 	renting a 	television and watching 	it while
assigned 	to hospital 	coverage; 	and bringing an unauthorized
wrestling video tape 	into Building 9 	for the 	inmates. 	During
this 	interview, 	Prasinos 	learned that Meister and Cuevas 	had
filed reports 	concerning some of 	these 	incidents.
At 	the Skelly3 hearing held on April 	16, 	1991, 	Prasinos
admitted 	his 	participation 	in 	these 	incidents 	and personally
apologized to the warden. 	Warden George E. 	Ingle 	(Ingle) 	gave
Prasinos 	a 30-day suspension, 	which was 	effective May 12 	through
June 10, 	1991. 	Prasinos accepted the suspension, 	believed it
was 	fair and agreed not 	to appeal 	it 	to 	the 	State 	Personnel 	Board
(SPB).
After Prasinos was notified of 	the 	investigation, 	he 	talked
to a number of 	his 	fellow officers 	about 	the 	investigation.
Several 	of 	these 	officers 	were 	CCPOA job 	stewards 	and others
were not. 	In some 	of 	these 	conversations he said that Meister
and Cuevas 	had 	"ratted him off," 	or words 	to that 	effect.
Prasinos 	insisted he 	only 	discussed 	his 	adverse 	action with
his 	fellow officers 	to 	"educate 	them" 	so 	they would not 	commit
similar violations. 	Prasinos 	also 	claimed he never used the
terms 	"rat" 	or 	"snitch," 	and that he never volunteered the names
of 	the witnesses 	but 	only responded 	to 	inquiries 	as 	to who 	they
3Skelly v. 	State Personnel 	Board 	(1975) 	15 	Cal.3d 194
[124 Cal.Rptr. 14].
55

were. 	Two 	officers 	testified that 	Prasinos made 	comments 	to 	them
referring 	to 	"that 	snitch, 	Meister," 	and that 	Prasinos 	had used
the terms 	"rat" 	and 	"snitch" 	in reference to Meister and Cuevas.
On May 23, 	1991, 	Meister approached Lieutenant Jurcak and
complained 	that 	he 	and 	Cuevas 	were 	being 	harassed by 	their 	fellow
officers 	because 	they 	told 	the 	prison administration 	about
Prasinos' 	violations. 	Meister said the harassment 	took several
forms, 	but 	included various 	anonymous phone 	calls 	to Building 9,
referring 	to 	"rats" 	or calling 	the building a 	"cheese 	factory."
Meister 	reported being 	shunned by 	several 	officers. 	As 	the 	lead
floor officer of 	Building 	9, 	he 	typically received 	the keys 	and
information from the prior shift. 	This no longer occurred. 	The
departing 	shift 	officers 	no 	longer briefed Meister 	on 	the 	prior
shift's 	activities, 	instead they would just 	toss 	the 	equipment 	on
the desk and exit.
Cuevas 	also alleged that 	he was harassed. 	He 	also 	received
anonymous phone 	calls 	regarding 	"rats" 	and 	"cheese 	factory"
comments. 	He 	stated that 	he 	found a dead rat 	on the hood of
his 	car, 	although no one else 	saw it. 	He 	said he did not 	show it
to anyone 	else as 	he 	felt 	he had been through enough harassment.
Prasinos 	claimed that prior to May 31, 	1991, 	he was unaware
that 	other officers 	had allegedly 	taken 	it upon 	themselves 	to
commit acts 	of harassment against Meister and Cuevas. 	On May 31,
1991, 	while on suspension, 	Lieutenant Alfred W. 	Stone called
Prasinos 	at 	home 	and directed him to 	come 	in 	for an 	investigatory
interview regarding 	the 	alleged harassment 	of Meister and Cuevas.
6

On June 28, 	1991, 	Prasinos was 	served with a Notice of Adverse
Action of Dismissal. 	In that notice, 	he was 	charged with
inefficiency, 	inexcusable neglect of duty, 	dishonesty,
discourteous 	treatment, 	other failure of good behavior, 	and
unlawful 	retaliation against 	another employee. 	The 	notice
listed 	seven 	separate 	charges 	for which 	Prasinos 	was 	being held
accountable. 	Five 	of 	these 	charges 	involved other officers
making derogatory 	statements 	to 	or about Meister and/or Cuevas.
Two 	charges 	alleged direct 	statements 	made by 	Prasinos.
Prasinos' 	dismissal was effective July 8, 	1991. 	On July 19,
1991, 	Prasinos 	filed a grievance alleging 	the State had breached
the contract bargaining agreement 	(CBA) 	when it 	retaliated
against 	him for his 	exercise 	of protected activities 	(i.e.,
discussion with his 	fellow employees 	concerning 	the 	circumstances
surrounding his adverse action). 	Prasinos also appealed his
dismissal 	to the SPB.
Correctional Officer Mark Tindall 	(Tindall), 	CCPOA chapter
president 	at 	the Mule 	Creek State 	Prison, 	testified that 	the
"rumor mill" 	or 	"grapevine" 	is 	important 	for the purpose of
gathering 	information to determine 	if 	there are problems 	that
need to be addressed. 	Correctional 	Officer Gary Crist 	(Crist),
chief 	job 	steward and 	former Mule 	Creek 	Prison 	CCPOA chapter
president, 	stated that 	the 	flow of 	information through the
grapevine 	significantly decreased 	following 	Prasinos' 	dismissal.
Crist 	indicated 	that 	officers 	were 	reluctant 	to discuss 	anything
other than official 	business with anyone, 	including CCPOA
7

stewards, 	because 	they were afraid of being accused of 	spreading
rumors. 	Both Tindall and Crist 	stated that 	Prasinos was 	the 	only-
Mule 	Creek 	correctional 	officer 	ever 	disciplined 	for 	talking 	to
other officers 	about 	his 	adverse 	action.
In preparation for the SPB hearing on Prasinos' 	dismissal,
Linda Dizmon, 	employee 	relations 	officer at Mule 	Creek State
Prison, 	reviewed 	investigatory 	reports 	and 	found 	three 	incidents
that 	had not been 	listed as 	specific 	charges 	in 	Prasinos' 	initial
30-day suspension, 	although there 	had been references 	to 	them in
the documentation. 	The 	first 	involved unlocking 	inmate 	cell
doors 	in Building 	9 	without 	authorization 	from the 	floor
officers. 	The 	second incident 	dealt with the 	specific 	charge
of 	the 	allegedly unauthorized 	release 	of 	inmate Newberry 	from
his 	cell 	which 	resulted 	in Newberry's 	confrontation with Officer
Cuevas. 	The 	third 	concerned 	Prasinos' 	alleged repeated 	cut-off
of 	the VCR during the 	inmates' 	viewing period, 	causing the
inmates 	to become 	agitated and hostile.
Although 	these 	three 	incidents 	had been previously
overlooked, 	Warden 	Ingle believed they were 	serious 	enough
to warrant 	supplementing Prasinos' 	notice of dismissal. 	On
November 21, 	1991, 	the Department served Prasinos with a
"Supplemental 	Notice 	of Adverse Action" 	based on these 	incidents.
CCPOA and 	the 	State 	are parties 	to a 	CBA with a 	term of
CO
	8

May 26, 	1989 	through June 30, 	1991.4 Article V, 	section 5.03
states:
a. 	The 	State and the Union shall 	not 	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 	the
State 	Employer-Employee 	Relations Act 	(Ralph
C. Dills' Act).
The 	CBA also 	includes 	a 	grievance procedure which 	culminates 	in
binding arbitration 	(Article V I ) .
Arbitrator's 	Award
Prasinos 	filed a grievance 	alleging 	that 	the 	State 	had
violated 	the 	CBA when 	it 	dismissed 	him 	for 	discussing 	his 	adverse
action with his 	co-workers. 	An arbitration hearing 	concerning
Prasinos' 	grievance was held on January 30-31 and April 	21-21,
1992. 	The arbitrator's 	opinion and award was 	issued on August 	7,
1992. 	In her opinion, 	the arbitrator found that 	the provisions
of 	section 	5.03 	essentially 	incorporate 	the provisions 	of Dills
Act 	section 3519(a).5 Therefore, 	the arbitrator applied the test
4The Board may take 	official 	notice 	of 	the 	terms 	of 	a CBA
filed with PERB pursuant 	to PERB Regulation 32120. 	(Cal. 	Code of
Regs., 	tit. 	8, 	sec. 	17.) 	(State of California 	(Department of
Forestry and Fire 	Protection) 	(1993) 	PERB Decision No. 	999-S.)
5Dills Act section 3519(a) 	states, 	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
to interfere with, 	restrain, 	or coerce
employees because 	of 	their exercise of 	rights
guaranteed by 	this 	chapter.
9

established by PERB 	in Novato Unified School District 	(1982) 	PERB
Decision No. 	210 	(Novato), 	to determine whether the State
retaliated against 	Prasinos 	in violation 	of 	section 	5.03 	of
the CBA.
The 	arbitrator 	considered 	the 	comments 	Prasinos made
to his 	fellow officers pertaining 	to 	the 	events 	leading 	to
his 	suspension and 	concluded 	that 	Prasinos 	participated 	in
protected 	activity when he 	engaged 	in 	these 	discussions 	with
his 	co-workers. 	The arbitrator also 	found that 	the 	State was
aware 	of 	this 	protected activity and 	that 	it 	took adverse 	action
against 	Prasinos 	when it 	terminated his 	employment.
Further, 	the arbitrator concluded that 	the 	State's 	dismissal
of 	Prasinos 	was 	unlawfully motivated. 	The arbitrator noted 	that
other officers who made 	similar references 	to 	"rats" 	and
"snitches" 	in 	connection with Meister and Cuevas 	were not
disciplined.
Finally, 	the arbitrator 	considered whether the 	State had a
"legitimate 	operational 	necessity" 	for its dismissal 	of 	Prasinos.
The 	arbitrator 	found that 	the 	State did not 	establish that 	it 	had
just 	cause 	to dismiss 	Prasinos because most 	of 	the harassment
against Meister and 	Cuevas 	occurred as 	a 	result 	of 	other
officers' 	conduct. 	Therefore, 	the arbitrator concluded that
the State violated the parties' 	CBA when it 	terminated Prasinos.
The arbitrator reversed Prasinos' 	dismissal, 	ordered the State
to 	reinstate 	him and 	imposed a 	30-day 	suspension on 	Prasinos.
10

Following the 	issuance of 	the arbitrator's award, 	in late
August 	1992, 	the parties 	entered into a settlement agreement 	to
modify and implement 	the arbitrator's award. 	In the agreement,
the State agreed to 	reinstate 	Prasinos, 	returning him to duty at
California 	State 	Prison-Folsom 	following 	a 	30-day 	suspension.
Prasinos 	agreed to withdraw the 	appeal 	of 	his 	dismissal 	from
the 	SPB, 	and CCPOA agreed 	to withdraw from its 	requested 	remedy
in the 	instant 	case 	its 	request 	for Prasinos' 	reinstatement.
ALJ'S 	PROPOSED 	DECISION
To determine whether 	the 	State's 	dismissal 	of 	Prasinos
impacted 	the 	flow of 	information 	through 	the 	"rumor-mill"
or 	"grapevine," 	the ALJ applied 	the 	test 	for retaliation or
discrimination set 	out 	in Novato. 	The ALJ, 	making 	findings
similar to those of 	the arbitrator, 	determined that 	the
employees' 	right 	to communicate with each other about 	terms
and 	conditions 	of 	employment 	is 	a protected 	right 	and 	that 	the
State had knowledge of 	Prasinos' 	participation in this protected
activity.
The ALJ 	found evidence 	of 	unlawful 	motivation when 	the 	State
dismissed Prasinos 	for using the terms 	"rat", 	"snitch" 	and
"ratted me 	off," 	but 	it 	did not 	discipline 	other officers 	for
making similar 	comments. 	The ALJ also 	found suspect 	the 	State's
explanation that 	it 	"overlooked" 	the 	supplemental 	grounds 	for
dismissal 	filed against 	Prasinos.
11

Finally, 	the ALJ dismissed the 	State's 	argument 	that 	it 	had
a 	right 	to discipline 	Prasinos 	if 	his 	statements 	were 	likely to
cause 	dissention 	or unrest 	among 	the 	correctional 	officers.
The ALJ 	concluded that 	the 	State violated Dills Act 	section
3519(b) 	when it 	served Prasinos with two notices 	of adverse
action of 	dismissal 	and 	terminated his 	employment.
THE 	STATE'S 	EXCEPTIONS
The 	State 	contends 	that 	the ALJ erred 	in 	finding 	that 	it
violated the Dills Act when it 	terminated Prasinos' 	employment.
Specifically, 	the 	State argues 	the ALJ erred when he 	concluded
that 	CCPOA has 	a protected right 	of 	access 	to 	the 	"rumor-mill"
or 	"grapevine." 	Furthermore, 	the State contends 	the ALJ erred in
finding 	that 	it 	acted with unlawful 	motivation when 	it 	dismissed
Prasinos.
DISCUSSION
Dills Act 	section 3514.5 	states, 	in pertinent part:
The 	board 	shall 	have 	discretionary
jurisdiction 	to 	review 	such 	settlement 	or
arbitration award 	reached pursuant 	to 	the
grievance machinery 	solely 	for 	the purpose
of 	determining whether 	it 	is 	repugnant 	to 	the
purposes 	of 	this 	chapter. 	If 	the board finds
that 	such 	settlement 	or arbitration award 	is
repugnant 	to the purposes 	of 	this 	chapter,
it 	shall 	issue a complaint 	on the basis 	of.
a 	timely 	filed 	charge, 	and hear and decide
the case on the merits; 	otherwise, 	it shall
dismiss 	the 	charge.
In Dry Creek Joint 	Elementary School 	District 	(1980) 	PERB
Order No. 	Ad-81a 	(Dry Creek). 	the Board adopted the post-
arbitration deferral 	standard 	enunciated by 	the 	National 	Labor
Relations 	Board 	(NLRB) 	in Spielberg Manufacturing 	Company 	(1955)
12

112 NLRB 	1080 	[36 	LRRM 1152] 	(Spielberg) 	and Collyer Insulated
Wire 	(1971) 	192 NLRB 837 	[77 LRRM 1931]. 	The Board will defer
to an arbitrator's 	award 	if:
1. 	The matters 	raised 	in the unfair practice 	charge
were 	presented 	to 	and 	considered by 	the 	arbitrator;
2. 	The arbitral 	proceedings were 	fair and regular;
3. 	All 	parties 	to 	the arbitration proceedings 	agreed
to be bound by the arbitral 	award; 	and
4. 	The award is not 	repugnant 	to the purposes 	of 	the
Dills Act.
In 01in Corp. 	(1984) 	268 NLRB 573 	[115 	LRRM 1056] 	(Olin
Corp.), 	the NLRB further described its 	standard for deferral 	to
an arbitrator's 	award:
We 	would 	find 	that 	an arbitrator has
adequately 	considered 	the 	unfair 	labor
practice 	if 	(1) 	the contractual 	issue is
factually parallel 	to 	the unfair 	labor
practice issue, 	and 	(2) 	the arbitrator was
presented generally with 	the 	facts 	relevant
to resolving the unfair labor practice. 	[Fn.
omitted.] 	In this respect, 	differences, 	if
any, 	between the 	contractual 	and statutory
standards 	of 	review 	should be 	weighed by 	the
Board as part 	of 	its 	determination under the
Spielberg 	standards 	of whether an award 	is
"clearly repugnant" to the Act. 	. 	. 	. 	Unless
the award is 	"palpably wrong," 	[Fn. 	omitted.]
i.e., 	unless 	the arbitrator's 	decision is not
susceptible 	to 	an 	interpretation 	consistent
with the Act, 	we will defer.
In Yuba City Unified School District 	(1995) 	PERB Decision
No. 	1095, 	the Board determined that 	once an arbitration award has
been issued, 	the post-arbitration deferral 	standard enunciated
above must 	be 	applied to determine 	PERB's 	jurisdiction,
regardless 	of 	the 	section of 	the 	statute alleged to have been
violated 	in 	the 	unfair practice 	charge.
13

The 	arbitrator 	issued 	an 	opinion and 	award 	resolving
Prasinos' 	grievance on August 7, 	1992, 	prior to the completion
of 	the hearing before PERB 	in the 	instant 	case. 	The arbitrator
concluded 	that 	the 	State violated Article V, 	section 5.03 	of
the parties' 	CBA when it terminated Prasinos' 	employment. 	The
parties 	subsequently 	entered 	into 	a 	settlement 	agreement 	which
modified and 	implemented 	the 	arbitrator's 	award. 	The parties
agreed 	to 	a 	30-day 	suspension 	for 	Prasinos 	and 	thereafter 	to
reinstate 	him to a position at 	California 	State 	Prison-Folsom.
Applying 	the 	Dry Creek post-arbitration deferral 	standard 	to
-
this 	case, 	the Board finds 	that 	this matter should be dismissed
and deferred 	to 	the 	arbitrator's 	award as 	modified and
implemented by the parties' 	settlement agreement.
The 	issues 	and 	the 	facts 	considered by 	the 	arbitrator are
identical 	to 	those 	raised 	in 	the unfair practice 	charge before
the 	Board. 	The 	arbitrator's 	opinion and award was 	issued after
a hearing 	in which both parties 	in 	the 	case before 	PERB 	had an
opportunity to participate. 	There 	is 	no appearance 	or assertion
by either party that 	the arbitral 	proceedings were unfair. 	In
addition, 	the terms 	of 	the parties' 	CBA indicate that 	the parties
have 	agreed 	to be bound by 	the 	arbitral 	award.
Finally, 	the Board will 	not 	find an arbitrator's 	award
repugnant 	to 	the purposes 	of 	the Dills Act unless 	the award
is 	"palpably wrong" 	and not 	susceptible 	to an 	interpretation
consistent with the Dills Act. 	(Spielberg; 	01in Corp..)
-
Furthermore, 	the 	fact 	that 	the Board 	"may have 	reached a
14

different 	conclusion 	in 	interpreting 	the parties' 	agreement 	and
the 	evidence 	does 	not 	render 	the 	award unreasonable 	or
repugnant." 	(Los Angeles Unified School District 	(1982) 	PERB
Decision No. 	218.)
The arbitrator applied PERB's 	own test, 	set 	out 	in Novato,
to 	determine 	whether 	the 	State 	unlawfully 	retaliated 	against
Prasinos 	for participation 	in protected activity. 	Regardless 	of
whether 	the 	Board would have 	reached a 	different 	result 	on 	these
issues, 	there are no 	findings 	in the arbitrator's 	award which
are 	clearly repugnant 	to the purposes 	of 	the Dills Act. 	The
Board 	finds 	that 	the arbitrator's 	award 	is 	not 	repugnant 	to 	the
purposes 	of 	the Dills Act 	and 	the 	Board's 	standard 	for dismissing
the unfair practice 	charge 	and deferring 	to 	the 	arbitrator's
award has been met. 	Accordingly, 	the Board dismisses 	and defers
the unfair practice 	charge 	to 	the 	arbitrator's 	award as modified
and implemented by the parties' 	settlement 	agreement.
ORDER
The 	complaint 	and unfair practice 	charge 	in Case
No. 	S-CE-509-S 	are 	hereby DISMISSED.
Member Caffrey 	joined 	in 	this 	Decision.
Member Garcia's 	dissent begins 	on page 	16.
15

GARCIA, 	Member, 	dissenting: 	The majority conclusion is a
change 	in policy that 	is 	not 	consistent with the Ralph C. 	Dills
Act 	(Dills Act) 	and legal doctrine. 	It 	is 	error to employ a
repugnancy analysis 	to an arbitrator's 	award 	involving 	other
parties 	and use 	it 	as 	a bridge 	to 	establish a 	collateral 	estoppel
bar to a decision on a different 	issue. 	Furthermore, 	the
conclusion 	is 	a paradox because 	it 	adopts 	a 	finding 	of 	a
violation 	in 	the 	arbitrator's 	award 	to 	reverse 	a 	finding 	of 	a
violation in the administrative law judge's 	(ALJ) 	decision.
First 	I will 	provide a brief background of 	the 	relevant
facts. 	After 	learning that 	the 	State 	of 	California 	(Department
of 	Corrections) 	(State) 	planned to dismiss him from his position,
David P. 	Prasinos 	(Prasinos) 	filed a grievance against 	it 	that
ultimately went 	to arbitration. 	The 	California 	Correctional
Peace Officers Association 	(CCPOA) 	was not a party in interest 	to
that 	arbitration, 	which 	focused on 	the 	disciplinary action 	taken
against 	the grievant 	Prasinos. 	The arbitrator applied 	the Novato
Unified School District 	(1982) 	PERB Decision No. 	210 	(Novato)
test 	for 	reprisal 	and found a violation by the 	State. 	The
arbitrator 	ruled 	that 	although 	the 	employer has 	a 	limited 	right
to 	control 	communication, 	termination of 	employment was 	too
severe 	and a 	30-day 	suspension was 	appropriate.
CCPOA 	filed an unfair practice 	charge 	with 	the 	Public
Employment Relations Board 	(PERB or Board), 	alleging that 	the
impact 	of many of 	the 	events 	analyzed 	in the arbitration
constituted a violation by 	the 	State 	of 	the 	rights 	guaranteed 	to
16

CCPOA under Dills Act 	section 3519(b).1 The essence of 	the
complaint 	before 	PERB was 	that 	the discipline 	of 	the 	employee
caused 	other 	employees 	to 	withhold 	communication via 	the
grapevine 	and 	this 	in 	turn 	reduced 	communication between 	CCPOA
and its members. 	The ALJ also applied the Novato analysis used
by 	the 	arbitrator and 	found 	that 	the 	State 	committed a violation
because 	the 	discipline 	had an 	impact 	on 	communication via 	the
grapevine.
Without 	a 	request 	from any party, 	the majority 	opinion
examines 	the arbitrator's 	award and rules 	that 	it 	is 	"not
repugnant 	to 	the purposes 	of 	the Dills Act," 	and then dismisses
the 	complaint 	in a different 	case, 	in effect 	reversing 	the ALJ's
proposed 	decision 	that 	was 	consistent 	with 	the 	arbitrator's
award. 	Dills Act section 3514.5 provides, 	in pertinent part:
The 	board 	shall 	have 	discretionary
jurisdiction to review 	[a] 	settlement 	or
arbitration award 	reached pursuant 	to 	the
grievance machinery solely 	for the purpose 	of
determining whether 	it 	is 	repugnant- -to 	the
purposes 	of 	this 	chapter. 	If 	the board finds
that 	such 	settlement 	or arbitration award 	is
repugnant 	to the purposes of this 	chapter, 	it
shall 	issue a 	complaint 	on the basis 	of 	a
timely 	filed charge, 	and hear and decide 	the
case on the merits; 	otherwise, 	it shall
dismiss 	the 	charge. 	[Emphasis added.]
The majority 	is 	erroneously using 	the 	repugnancy
jurisdiction as 	a device 	to bring 	in the arbitrator's 	award as 	a
1The State 	filed a motion to dismiss 	section 3519(b), 	which
was 	denied and appealed. 	The Board affirmed that 	ruling 	in
State of 	California 	(Department of Corrections) 	(1992) 	PERB Order
No. 	Ad-231-S) 	because 	it 	found that 	the collective bargaining
agreement 	did not 	prohibit 	the 	disputed 	conduct 	(denial 	of 	Dills
Act 	rights to an employee organization).
17

collateral 	estoppel 	bar 	that 	justifies 	dismissing 	CCPOA's
separate cause of action, 	on a different 	issue, 	before PERB.
In the misapplied deferral 	analysis, 	the majority cites 	the
four 	standards 	established 	in Dry 	Creek Joint 	Elementary 	School
District 	(1980) 	PERB Order No. 	Ad-81a that must be met before 	the
Board will 	defer 	to an arbitrator's 	award. 	The majority 	ignores
the 	fact 	that 	two of 	the 	four standards are not 	satisfied. 	As
recited by the majority, 	the deferral 	requirements are:
1. 	The matters 	raised in the unfair practice
charge 	were 	presented 	to 	and 	considered by
the arbitrator;
2. 	The arbitral proceedings were 	fair and
regular;
3. 	All 	parties 	to the arbitration
proceedings 	agreed 	to be 	bound by 	the
arbitral award; 	and
4. 	The award is not 	repugnant 	to the
purposes 	of the Dills Act.
These 	standards 	test 	whether 	the 	collateral 	estoppel
doctrine 	should be 	applied 	to prevent 	cases 	from being 	retried 	in
a second forum. 	The majority, 	in a 	cursory manner, 	deems 	the
standards 	satisfied and 	orders 	post-arbitration deferral,
effectively preventing 	a 	separate 	case 	from being 	decided by
PERB, 	despite the 	fact that half of 	the 	four standards 	(standards
1 and 3) 	are not met 	in the 	case at bar.
After a 	lengthy recitation of 	the 	sources 	of 	PERB's 	post-
arbitration deferral 	standard, 	the majority provides 	only a
cursory, 	conclusory 	"application" 	of 	the test 	itself. 	Since 	the
question 	of whether or not 	CCPOA has 	a 	forum for 	its 	statutory
18

cause of 	action hangs 	in the balance, 	it would seem appropriate
to provide detailed 	reasons2 for ruling 	that 	CCPOA is
collaterally 	estopped 	from proceeding 	here.
For example, 	standard 1 	tests 	for identity of 	issues 	in the
two proceedings, 	a matter which is 	crucial 	to the concept of
collateral 	estoppel. 	The majority's 	entire discussion of 	that
standard consists 	of 	the bare 	statement 	that, 	"The 	issues 	and
facts 	considered by 	the 	arbitrator are 	identical 	to 	those 	raised
in 	the unfair practice 	charge before 	the Board." 	Besides being
brief and unsupported, 	this 	statement 	is 	inaccurate; 	the
arbitrator never 	considered whether 	CCPOA has 	a protected 	right
of 	access 	to 	the grapevine, 	much less whether the action taken
against 	Prasinos 	impacted CCPOA's 	communication 	rights.
Under standard 	3, 	prior to deferral 	the decision maker must
ensure 	that 	the persons 	affected by the present 	ruling are 	the
same persons 	involved 	in the prior proceeding, 	and that 	they
agreed 	to be bound by 	that 	proceeding. 	The majority 	sidesteps
this 	standard and disposes 	of 	the 	requirement by stating 	that,
"The 	arbitrator's 	opinion and award was 	issued after a hearing 	in
which both parties 	in 	the 	case before 	PERB 	had an opportunity to
-
participate." 	The problem with 	this 	conclusion 	is 	that 	CCPOA was
2See Louisiana Pacific Corp. 	v. 	NLRB 	(9th Cir. 	1995)
149 	LRRM 2080, 	in which the 	court 	held that 	administrative 	orders
are 	required 	to meet 	a standard of 	clarity.
19

not 	a party 	in 	interest 	to 	the arbitration,3 nor 	is 	there
evidence 	that 	it 	agreed 	to be bound by 	the 	arbitration award.
Through 	the 	contortion 	of 	a misapplied 	repugnancy
jurisdiction that violates 	standards 	of 	deferral, 	the majority
inducts 	collateral 	estoppel 	to deny CCPOA's 	statutory right 	of
access 	to 	PERB. 	That 	strategy was 	born 	in Yuba City Unified
School District 	(1995) 	PERB Decision No. 	1095 	(Yuba City), 	and is
extended here 	to 	further 	embed an unfair policy 	into precedent.
My dissent 	in Yuba 	City 	explains 	the 	legal 	deficiencies 	of 	the
attempted change 	in policy; 	Member Carlyle's 	dissent 	in State 	of
California 	(Department of Corrections) 	(1995) 	PERB Decision
No. 	1100-S 	is also instructive on this error.
Finally, 	the majority 	fails 	to squarely 	face 	the question of
whether 	the 	indirect 	impact 	on 	communication via 	the 	grapevine,
caused by the State's action in disciplining the 	employee, 	was
sufficient 	to 	constitute a violation of 	CCPOA's 	rights. 	That 	is
the 	central 	issue 	raised by the 	State's 	exceptions 	and 	it 	is
avoided by 	this 	attempt 	at 	collateral 	estoppel.
3See 	State 	of 	California 	(Department 	of 	Youth Authority)
(1995) 	PERB Decision No. 	1080-S, 	where the Board affirmed an
ALJ's 	proposed 	decision 	dismissing 	an unfair practice 	charge 	on
the basis 	of 	collateral 	estoppel. 	At page 	19 	of 	the proposed
decision, 	the ALJ stated that 	collateral 	estoppel 	was 	appropriate
despite differences 	in named parties, 	if 	the parties 	in the 	first
proceeding have 	a 	"clear 	identity of 	interest" 	with 	the parties
in the 	second proceeding.
20