State of California (Department of Personnel Administration) (California Union of Safety Employees) (PERB 1145SA)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA UNION OF 	SAFETY
EMPLOYEES,
Charging 	Party,
v.
STATE OF CALIFORNIA 	(DEPARTMENT
OF PERSONNEL ADMINISTRATION),
Respondent.
)
)
) 	Case No. 	S-CE-756-S
Request 	for Reconsideration
PERB Decision No. 	1145-S
PERB Decision No. 	1145a-S
August 29, 	1996
)
)
)
)
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Appearances: 	Carroll, 	Burdick and McDonough by Gary M. 	Messing,
Attorney, 	for California Union of 	Safety Employees; 	Roy J.
Chastain, 	Labor Relations Counsel, 	for State of California
(Department of Personnel Administration).
Before Caffrey, 	Chairman; 	Garcia and Johnson, 	Members.
DECISION
CAFFREY, 	Chairman: 	This 	case is before the Public
Employment 	Relations 	Board 	(PERB or Board) 	on a 	request by 	the
California Union of 	Safety Employees 	(CAUSE) 	that 	the Board
reconsider 	its 	decision 	in 	State 	of 	California 	(Department 	of
Personnel Administration) 	(1996) 	PERB Decision No. 	1145-S 	(DPA
(CAUSE)). 	In that decision, 	the Board affirmed a Board agent's
partial 	dismissal 	of 	an unfair practice 	charge 	in which CAUSE
alleged 	that 	the 	State 	of 	California 	(Department 	of 	Personnel
Administration) 	(State) 	violated section 3519(a), 	(b) 	and 	(c) 	of
the Ralph C. 	Dills Act 	(Dills Act)1 when it unilaterally changed
1The Dills Act 	is 	codified at Government 	Code 	section 3512
et seq. 	Section 3519 	states, 	in pertinent part:
It 	shall be unlawful 	for the state to do any
of 	the 	following:

released time 	rights, 	transferred the work of 	the 	California
State Police 	(CSP) 	to another bargaining unit, 	and unlawfully
delegated 	responsibility 	to negotiate 	from the 	State 	to
individual 	departments.2
BACKGROUND
CAUSE 	appealed 	to 	the 	Board only 	the 	dismissal 	of 	the
allegation 	that 	the 	State unilaterally 	transferred the work 	of
the CSP 	to another bargaining unit. 	The Board 	in DPA 	(CAUSE)
rejected CAUSE'S 	appeal 	of 	that 	allegation, 	concluding 	that 	the
facts 	presented described a unilateral 	transfer of 	bargaining
unit 	work 	rather than a unilateral 	modification of 	a bargaining
unit, 	as 	CAUSE 	had argued. 	A transfer of work 	from one
bargaining unit 	to another affects 	the wages, 	hours and working
conditions 	of 	employees 	in the 	former unit. 	(Rialto Unified
(a) 	Impose or threaten to 	impose 	reprisals
on employees, 	to discriminate or threaten to
discriminate against 	employees, 	or otherwise
to interfere with, 	restrain, 	or coerce
employees because 	of 	their exercise 	of 	rights
guaranteed by this 	chapter. 	For purposes 	of
this subdivision, 	"employee" 	includes an
applicant 	for 	employment 	or 	reemployment.
(b) 	Deny to employee 	organizations 	rights
guaranteed 	to 	them by 	this 	chapter.
(c) 	Refuse or fail 	to meet and confer in
good 	faith with 	a 	recognized 	employee
organization.
2A complaint was 	issued on 	the 	remaining allegations 	in
CAUSE'S 	charge 	involving alleged unilateral 	changes 	in 	released
time provisions 	of 	the parties' 	collective bargaining agreement.
The parties 	reached a 	tentative 	settlement 	of 	the 	complaint
through 	PERB's 	informal 	settlement 	conference process.
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School District 	(1982) 	PERB Decision No. 	2 09.) 	Since CAUSE and
the 	State were parties 	to a 	collective bargaining agreement 	(CBA)
which 	included a provision 	calling 	for negotiations 	over 	the
impact 	of 	any 	changes 	in working 	conditions 	proposed by 	the
State, 	the Board concluded that 	a proposal 	by the 	State 	to
transfer bargaining unit 	work was 	covered by 	that 	CBA provision.
Since 	the 	CBA 	included a 	grievance 	and arbitration procedure
which 	covered the 	conduct 	in question, 	the Board 	in DPA 	(CAUSE)
dismissed and 	deferred 	the matter 	to 	the 	contractual 	grievance
and arbitration procedure. 	(Lake 	Elsinore 	School 	District 	(1987)
PERB Decision No. 	646.)
CAUSE'S 	REQUEST 	FOR 	RECONSIDERATION
CAUSE'S 	request 	for reconsideration 	is based on 	two grounds.
First, 	CAUSE argues 	that new facts 	exist which were not available
when 	the 	Board 	considered CAUSE'S 	appeal 	of 	the partial 	dismissal
of 	the unfair practice 	charge. 	The Board in DPA 	(CAUSE) 	stated:
The assertion that 	the State 	intends 	to
transfer CSP officers 	into Unit 	5 	CHP
[California Highway Patrol] 	positions 	in the
future 	does 	not 	demonstrate 	that 	a bargaining
unit 	is being modified by 	the 	removal 	or
transfer of 	job 	classifications.
CAUSE 	interprets 	this 	statement 	as 	an 	indication 	that 	the Board
focused on 	the 	fact 	that 	the 	State had not 	yet made 	the 	described
transfer at 	the 	time 	that 	CAUSE'S 	appeal 	was being 	considered.
CAUSE 	opines 	that 	the 	Board would have 	reached a different
conclusion 	if 	the 	transfer had already occurred at 	the 	time 	of
the Board's 	review. 	CAUSE asserts 	that 	the State has 	now
"transferred all 	but 	a handful 	of 	the Unit 	7 	CSP positions 	into
3

Bargaining Unit 	5." 	CAUSE argues 	that 	this 	fact 	constitutes
newly discovered evidence 	which was 	not 	previously available, 	and
provides 	appropriate grounds 	to grant 	its 	request 	for
reconsideration.
Second, 	CAUSE argues 	that 	the Board's decision in DPA
(CAUSE) 	contains a prejudicial 	error of 	fact. 	CAUSE asserts 	that
the Board 	incorrectly 	characterized 	the 	facts 	of 	the 	case 	as 	a
transfer of Unit 	7 	CSP employees 	into existing Unit 	5 positions.
On the 	contrary, 	CAUSE asserts 	that 	the State 	is 	eliminating
positions 	from Unit 	7 and creating 	them in Unit 	5. 	CAUSE argues
that 	this 	action represents more 	than a mere 	transfer of work,
and demonstrates 	that 	the bargaining units 	are being modified.
CAUSE asserts 	that 	"the Board's 	characterization of 	the 	facts 	as
simply a 	transfer of 	CSP 	employees 	into existing Unit 	5 	positions
is 	a 	significant 	factual 	error" 	which should lead the Board 	to
reconsider its decision in DPA 	(CAUSE).
STATE'S 	RESPONSE
The 	State 	opposes 	CAUSE'S 	request 	for reconsideration. 	The
State 	asserts 	that 	the new 	facts 	offered by CAUSE merely 	restate
information previously provided 	to 	PERB by the 	State. 	With
regard 	to 	CAUSE'S 	assertion 	that 	the 	Board's 	decision 	in DPA
-
(CAUSE) 	contains a prejudicial 	error of 	fact, 	the State argues
that 	CAUSE 	is 	simply disagreeing with 	the 	Board's 	finding 	that
the underlying dispute 	in this 	case 	involves a 	transfer of
bargaining unit 	work 	rather 	than a unit modification.
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DISCUSSION
PERB Regulation 324103 provides parties with the 	opportunity
to request the Board to reconsider a decision. 	It 	states, 	in
pertinent part:
(a) 	Any party to a decision of 	the Board
itself may, 	because of 	extraordinary
circumstances, 	file a request 	to reconsider
the decision within 20 	days 	following 	the
date of service of the decision. 	. 	. 	. 	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.
In its 	request 	for reconsideration, 	CAUSE 	focuses 	on the
Board's 	reference 	in DPA 	(CAUSE) 	to the State's 	intent 	to
transfer Unit 	7 	employees 	to Unit 	5 positions 	in the 	future.
CAUSE asserts 	that 	the 	fact 	that 	the 	transfer of Unit 	7 	employees
and positions 	to Unit 	5 	has 	now occurred constitutes 	newly
discovered 	evidence 	not 	previously available within 	the meaning
of 	PERB Regulation 32410.
PERB's 	"newly discovered evidence" 	standard 	for
reconsideration was 	established 	to address 	situations 	in which an
evidentiary hearing has been held on the merits 	of 	the 	case.
(San Joaquin Delta Community College District 	(1983) 	PERB
Decision No. 	261b.) 	The Board has 	described the problems
inherent 	in attempting 	to adapt 	this 	standard 	to a prehearing
setting 	in which 	the 	Board agent 	performs 	a 	limited 	investigatory
3PERB 	regulations 	are 	codified at 	California 	Code 	of
Regulations, 	title 8, 	section 31001 et seq.
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function 	for the purpose 	of 	determining 	if 	a prima 	facie 	case 	of
a violation has been alleged. 	(State of California. 	Department
of Developmental Services 	(1987) 	PERB Decision No. 	551a-S.) 	In a
prehearing 	investigation, 	the Board agent 	does 	not 	act 	in an
adjudicatory 	role 	and 	does 	not 	make 	evidentiary 	determinations
regarding credibility, 	hearsay, 	disputed issues of fact, 	or the
weight of 	the evidence. 	Thus, 	the Board has not 	considered the
"newly discovered 	evidence" 	standard 	to be 	appropriate 	grounds
for reconsideration of a Board agent's prehearing, 	partial
dismissal 	of 	an unfair practice 	charge. 	(Ibid.)
Assuming 	that 	the 	Board 	did apply 	the 	"newly discovered
evidence" 	reconsideration standard 	to 	the 	instant prehearing,
partial 	dismissal 	case, 	CAUSE'S 	request 	fails. 	CAUSE'S assertion
that 	the 	Board would have 	reached a different 	conclusion 	in DPA
(CAUSE) 	had the 	transfer of Unit 	7 	employees and positions 	to
Unit 	5 	already occurred, 	misinterprets 	the gravamen of 	the
Board's 	decision. 	In concluding 	that 	the allegations presented
by CAUSE 	did not 	describe 	a modification of 	the bargaining units
involved, 	the Board noted that 	"CAUSE does 	not 	assert 	that 	job
classifications 	are 	being 	removed 	or 	transferred by 	the 	State 	in
this 	case." 	The 	Board expressly adopted 	the Board agent's
dismissal 	letter which similarly stated 	"that 	there 	has 	been no
attempt 	to place 	the 	State 	Police 	classifications 	in the Highway
Patrol bargaining unit." 	The Board concluded 	in DPA 	(CAUSE) 	that
the alleged 	transfer of 	employees 	and positions 	from Unit 	7 	to
Unit 	5, 	which did not 	include 	the 	transfer of 	job
66

classifications, 	described a 	transfer of bargaining unit work and
not 	a modification of 	the bargaining units 	involved. 	This
conclusion 	is 	unaffected by whether 	or not 	the 	transfer 	of
employees 	and positions 	had already occurred at 	the 	time 	of 	the
Board's 	consideration. 	CAUSE'S assertion that 	the 	fact 	that 	the
transfer 	has 	now 	occurred 	constitutes 	"newly discovered 	evidence"
within the meaning 	of 	PERB Regulation 32410 	is without merit.
CAUSE'S 	assertion 	that 	the 	Board's 	decision 	in DPA 	(CAUSE)
contains 	a prejudicial 	error of 	fact 	is also without merit. 	In
its 	decision, 	the Board described CAUSE'S 	argument 	on appeal 	as
asserting 	"that 	the 	State's 	actions 	constitute an unlawful
modification 	of 	a bargaining unit 	by 	transferring Unit 	7 	CSP
positions 	to Unit 	5." 	(Emphasis added.) 	The State's argument 	is
described by 	the 	Board as 	asserting 	"that 	CSP positions 	have 	been
placed under 	the management 	and administration of 	the 	CHP but
that 	no 	classifications 	have been 	transferred 	from Unit 	7 	to
Unit 	5." 	(Emphasis 	added.) 	It 	is 	clear from these descriptions
that 	the 	Board understood 	the 	State's 	action to 	include 	the
transfer of positions 	from Unit 	7 	to Unit 	5. 	CAUSE'S assertion
that 	the 	Board's 	decision 	in DPA 	(CAUSE) 	contains 	a prejudicial
factual 	error by mischaracterizing 	the 	State's 	action as 	a
transfer of Unit 	7 	employees 	into existing Unit 	5 positions 	is
simply 	incorrect.
In numerous 	cases, 	the Board has 	reiterated that
reconsideration 	is 	not 	appropriate 	when a party merely restates
arguments 	previously 	considered by 	the Board. 	(California 	State
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University 	(1995) 	PERB Decision No. 	lO93a-H.) 	Since CAUSE'S
assertion of 	a prejudicial 	error of 	fact merely 	restates 	an
argument 	considered and rejected by the Board 	in DPA 	(CAUSE). 	it
fails 	to meet 	the 	standard 	for 	reconsideration 	included 	in 	PERB
Regulation 32410.
ORDER
The 	request 	for 	reconsideration of 	State 	of 	California
(Department 	of 	Personnel Administration) 	(1996) 	PERB Decision
No. 	1145-S 	is hereby DENIED.
Member Johnson 	joined in 	this 	Decision.
Member Garcia's 	concurrence begins 	on page 	9.
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GARCIA, 	Member, 	concurring: 	In State of California
(Department of Personnel Administration) 	(1996) 	PERB Decision
No. 	1145-S, 	the Public Employment Relations Board 	(PERB or Board)
affirmed a 	Board agent's 	deferral 	of 	an alleged unfair practice
charge 	to the 	contractual 	grievance procedure. 	The 	facts 	and
circumstances 	of 	the underlying allegations 	presented a picture
that 	showed 	the 	conduct 	complained of 	was 	susceptible 	to an
interpretation 	that 	it 	constituted a breach 	of 	the 	collective
bargaining agreement between the parties. 	Under the 	terms 	of
that 	agreement 	such breaches 	are grievable 	and 	could go 	to
arbitration. 	In that 	situation PERB must 	defer to 	the grievance
procedure.1 The facts offered to warrant reconsideration do not preclude
the 	interpretation 	that 	the 	conduct 	complained of 	could be
grievable. 	On that basis alone, 	the Board's decision to defer
the 	case 	in PERB Decision No. 	1145-S 	remains justified.
1In addition to 	the 	cases 	cited by the Board agent, 	the
exhaustion of 	remedies 	doctrine precludes 	PERB 	from taking
jurisdiction of 	this 	case. 	California courts will 	refuse 	to
consider disputes 	between parties 	to a 	collective bargaining
agreement until 	the parties 	to 	the dispute have 	exhausted
internal 	remedies under the 	terms 	of 	their grievance agreement.
(See, 	e.g., 	Cone v. 	Union Oil Co. 	(1954) 	129 Cal.App.2d 558, 	563-
564 	[277 P.2d 464]; 	George Arakelian Farms. 	Inc. v. 	Agricultural
Labor Relations Bd. 	(1985) 	40 Cal.3d 654, 	663 	[221 Cal.Rptr.
488]; 	and County of Contra Costa v. 	State of California 	(1986)
177 Cal.App.3d 62, 	77-78 	[222 Cal.Rptr. 	750].)
9