State of California (Department of Education) (PERB 1160S)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA STATE 	EMPLOYEES
ASSOCIATION,
Charging 	Party,
v.
STATE OF CALIFORNIA 	(DEPARTMENT
OF 	EDUCATION),
Respondent.
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) 	Case No. 	S-CE-808-S
PERB Decision No. 	1160-S
June 20, 	1996
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Appearances: 	Bill 	Kelly, 	Senior Labor Relations Representative,
for California State Employees Association; 	State 	of 	California
(Department of 	Personnel Administration) 	by Susan B. 	Sandoval,
Labor Relations 	Counsel, 	for State of 	California 	(Department 	of
Education).
Before Caffrey, 	Chairman; 	Garcia and Dyer, 	Members.
DECISION AND 	ORDER
CAFFREY, 	Chairman: 	This 	case is before the Public
Employment 	Relations 	Board 	(Board) 	on appeal by the 	California
State 	Employees Association 	(CSEA) 	of 	a Board agent's 	dismissal
(attached) 	of 	its unfair practice charge. 	In its charge, 	CSEA
alleged 	that 	the 	State 	of 	California 	(Department 	of 	Education)
(State) 	failed to meet and 	confer 	in good 	faith regarding a
change 	in work hours 	of 	teaching 	staff 	at 	the 	California 	School
for the Blind, 	in violation of 	section 3519(c) 	of 	the Ralph C.
Dills Act 	(Dills Act).1
1The Dills 	Act 	is 	codified at 	Government 	Code 	section 	3512
et seq. 	Section 3519 	states, 	in pertinent part:
It 	shall 	be unlawful 	for the 	state 	to do any
of 	the 	following:

The 	Board has 	reviewed the 	entire 	record 	in this 	case,
including 	CSEA's 	original 	and amended unfair practice 	charge,
the Board agent's warning and dismissal 	letters, 	CSEA's 	appeal
and 	the 	State's 	response 	thereto. 	The Board finds 	the warning
and dismissal 	letters 	to be 	free 	of prejudicial 	error and hereby
adopts 	them as 	the decision of 	the 	Board 	itself.
The unfair practice 	charge 	in Case No. 	S-CE-808-S 	is 	hereby
DISMISSED WITHOUT LEAVE 	TO AMEND.
Members Garcia and Dyer 	joined 	in 	this Decision.
(c) 	Refuse 	or fail 	to meet 	and confer 	in
good 	faith with 	a 	recognized 	employee
organization.
22

STATE OF CALIFORNIA 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
PEND
Sacramento Regional Office
1031 18th Street, Room 102
Sacramento, CA 95814-4174
(916) 322-3198
April 18, 	1996
Bill 	Kelly
Senior 	Labor 	Relations 	Representative
California State 	Employees' 	Association
1108 "0" Street
Sacramento, 	CA 95814
Re: 	NOTICE OF DISMISSAL AND REFUSAL TO 	ISSUE COMPLAINT
California State Employees' 	Association v. 	State of
California 	(Department 	of 	Education)
Unfair 	Practice 	Charge No. 	S-CE-808-S
Dear Mr. 	Kelly:
I 	indicated to you, 	in my attached letter dated March 	22, 	1996,
that 	the 	above-referenced 	charge 	did not 	state 	a 	prima 	facie
case. 	You were 	advised that, 	if 	there were 	any factual
inaccuracies 	or 	additional 	facts 	which would 	correct 	the
deficiencies 	explained in 	that 	letter, 	you 	should amend the
charge. 	You were 	further advised that, 	unless 	you 	amended the
charge 	to 	state 	a prima 	facie 	case 	or withdrew 	it 	prior to
April 	1, 	1996, 	the charge would be dismissed.
Your request 	for additional 	time was granted, 	and a First Amended
Charge was 	filed on April 	10, 	1996. 	The 	amended charge 	attaches
and 	incorporates 	two 	documents 	which were 	prepared 	by 	the
California State Employees' 	Association 	(CSEA) 	for use 	in the
mediation 	sessions 	held with 	the 	Department 	of 	Education
(Department) 	at 	the 	California 	School 	for the Blind. 	While 	the
documents 	demonstrate 	the 	level 	of 	effort 	made 	by 	CSEA 	in 	these
negotiations, 	they do not 	supplement 	the 	record 	in 	terms 	of
additional 	indicia of 	the 	Department's 	failure 	to 	bargain with
the 	requisite 	intent 	to 	reach agreement.1
1
1 1 discussed
_-_--
In discussing your charge 	by telephone on April 	18, 	1996,
you 	reiterated 	the 	contention 	that 	the 	Department 	treated 	the
negotiations 	"as 	a 	joke" 	and did not 	adequately prepare 	for
bargaining sessions. 	As 	in my March 22, 	1996 	letter, aa
party's unyielding position at 	the bargaining table, 	fairly
maintained, 	does not 	evidence 	lack of good faith. 	(See Oakland
Unified School 	District 	(1982) 	PERB Decision No. 	275, 	and cases
cited therein.) 	The charge does not, 	however, 	contain specific
factual 	allegations 	which 	support 	your 	conclusory 	statements 	or
indicate 	in what 	way 	the 	Department's 	position was 	not 	fairly
maintained.

Dismissal 	Letter
S-CE-808-S
April 18, 	1996
Page 	2
The 	only 	charge 	allegation which provides 	evidence 	of 	bad 	faith
is 	the Department's 	submission of 	a 	regressive proposal 	in
mediation on September 21, 	1995. 	Under Muroc Unified School
District 	(1978) 	PERB Decision No. 	80 	and the other cases 	cited in
my earlier letter, 	this 	single 	allegation does 	not 	state 	a prima
facie 	case under the 	"totality of 	conduct" 	test.
Therefore, 	I 	am dismissing the 	charge based on the 	facts 	and
reasons discussed above 	as 	well 	as 	those 	contained 	in my March
22, 	1996 letter.
Right 	to Appeal
Pursuant 	to 	Public 	Employment 	Relations 	Board regulations, 	you
may obtain 	a 	review of 	this 	dismissal 	of 	the 	charge 	by 	filing
an appeal 	to 	the Board itself within twenty 	(2 0) 	calendar days
after service of this dismissal. 	(Cal. 	Code of Regs., 	tit. 	8,
sec. 	32635(a).) 	To be timely filed, 	the original 	and 	five 	copies
of 	such appeal 	must 	be 	actually 	received by the 	Board 	itself
before the close of business 	(5 p.m.) 	or sent by telegraph,
certified 	or 	Express 	United 	States 	mail 	postmarked 	no 	later
than the last date set for filing. 	(Cal. 	Code of Regs., 	tit. 	8,
sec. 	32135.) 	Code of Civil 	Procedure section 1013 	shall 	apply.
The Board's 	address 	is:
Public 	Employment 	Relations 	Board
1031 	18th 	Street
Sacramento, 	CA 95814
If you 	file 	a 	timely appeal 	of 	the 	refusal 	to 	issue 	a 	complaint,
any other party may 	file 	with 	the 	Board 	an 	original 	and 	five
copies of 	a statement 	in opposition within twenty 	(20) 	calendar
days 	following the date of 	service of 	the appeal. 	(Cal. 	Code of
Regs., tit. 8, sec. 32635(b) .)
Service
All 	documents 	authorized 	to be 	filed herein must 	also 	be 	"served"
upon all parties 	to the proceeding, 	and a 	"proof 	of 	service"
must 	accompany 	each 	copy of 	a 	document 	served upon 	a 	party or
filed with the Board itself. 	(See Cal. 	Code of Regs., 	tit. 	8,
sec. 	32140 	for 	the 	required contents 	and a 	sample 	form.) 	The
document 	will 	be 	considered properly 	"served" 	when personally
delivered or deposited in the 	first-class 	mail, 	postage paid and
properly 	addressed.

Dismissal 	Letter
S-CE-808-S
April 18, 	1996
Page 3
Extension 	of 	Time
A request 	for an extension of 	time, 	in which to 	file 	a 	document
with 	the 	Board 	itself, 	must 	be 	in writing and 	filed with the
Board at 	the 	previously noted address. 	A request 	for 	an
extension must 	be 	filed at 	least 	three 	(3) 	calendar days 	before
the 	expiration of 	the 	time 	required 	for 	filing the 	document.
The 	request must 	indicate good cause 	for and, 	if known, 	the
position of 	each 	other party regarding 	the 	extension, 	and 	shall
be 	accompanied by proof 	of 	service 	of 	the 	request 	upon 	each
party. 	(Cal. 	Code of Regs., 	tit. 	8, 	sec. 	32132.)
Final 	Date
If no appeal 	is 	filed within the 	specified time 	limits, 	the
dismissal 	will 	become 	final 	when 	the 	time 	limits 	have 	expired.
Sincerely,
ROBERT 	THOMPSON
Deputy General 	Counsel
By Les 	Chisholm
Regional 	Director
Attachment
cc: 	Susan B. 	Sandoval

STATE OF CALIFORNIA 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
1031 18th Street, Room 102
Sacramento, CA 95814-4174
(916)322-3198
March 22, 	1996
Bill 	Kelly
Senior 	Labor 	Relations 	Representative
California 	State 	Employees 	Association
1108 "0" Street
Sacramento, 	CA 	95814
Re: 	WARNING LETTER
California State Employees Association v. 	State of California
(Department 	of 	Education)
Unfair 	Practice 	Charge 	No. 	S-CE-808-S
Dear Mr. 	Kelly:
The 	above-referenced 	charge 	was 	filed 	with 	the 	Public 	Employment
Relations Board 	(PERB or Board) 	on February 13, 	1996. 	The charge
alleges 	that 	the 	Department 	of 	Education 	(Department) 	failed 	to
meet 	and 	confer 	in 	good 	faith with 	the 	California 	State 	Employees
Association 	(CSEA 	or 	Charging 	Party) 	regarding 	a 	change 	in 	work
hours 	at 	the 	California 	School 	for 	the 	Blind 	(School) . 	This
conduct 	is 	alleged 	to 	violate 	the 	Ralph 	C. 	Dills 	Act 	(Act)1 at
section 3519.
Investigation 	of 	the 	charge 	revealed 	the 	following 	information.
CSEA 	is 	the 	exclusive 	representative 	of, 	inter 	alia, 	Dills
Bargaining 	Unit 	3 	- 	Institutional 	Education, 	which 	includes
teaching 	staff 	of 	the 	School. 	In 	June 	1995, 	management 	of 	the
School 	announced 	there 	would be 	a 	change 	in 	the 	teaching 	schedule
for 	the 	1995-96 	school 	year. 	CSEA 	demanded 	that 	the 	Department
bargain 	over 	the 	change 	in 	work 	hours 	and 	filed 	a 	grievance 	over
the 	matter. 	The 	grievance 	was 	resolved 	with 	the 	Department
agreeing 	to 	meet 	and 	confer with 	CSEA.
On August 	28, 	1995 	the Department 	and CSEA met 	and 	conferred over
the 	issue 	of 	a 	change 	of 	working 	hours, 	including 	extending 	the
work hours on Friday afternoons. 	That meeting did not result 	in an
agreement, 	and 	the 	dispute was 	submitted to mediation.
The 	parties 	met 	with 	a 	mediator 	on 	September 	21 	and 	November 	9,
1995, 	and were 	unable 	to reach an agreement.
The 	Department 	maintained 	a 	position 	from 	the 	beginning 	of
negotiations 	through 	the 	time 	that 	they 	implemented 	the 	change
whereby the 	revised 	teachers 	schedule 	would be 	as 	follows:
1The Act 	is 	codified at 	Government 	Code 	section 	3 512 	et 	seq.

Warning 	Letter
S-CE-808-S
March 22, 	1996
Page 	2
Monday, 	Tuesday, 	Thursday, 	8:15 	a.m. 	to 	4:00 	p.m. 	with 	45
minute 	lunch period.
Wednesday, 	8:00 	a.m. 	to 4:00, 	with 45 minute 	lunch period.
Friday, 	8:15 	a.m. 	to 2:00 p.m. 	with 45 minute lunch period.
This schedule contrasted with the 1994-95 schedule, 	which provided
as 	follows: 	Monday through Thursday, 	8:00 	a.m. 	to 	4:00 	p.m. 	with
30 	minute 	lunch period, 	and Friday, 	8:00 	a.m. 	to 	12:45 	p.m.
During the course of the negotiations and mediation, 	the Department
responded 	to 	CSEA's 	concerns 	by 	changing 	its 	proposal 	only 	once.
On September 21, 	1995, 	in response to CSEA demands that the workday
should begin 	earlier 	and end earlier, 	the 	Department 	communicated
through 	the 	mediator 	a 	proposal 	that 	would 	change 	the 	starting
times 	for 	all 	five 	days 	of 	the 	week 	to 	8:00 	a.m. 	but 	did 	not
propose any movement 	on the ending time of 	the workday. 	At 	CSEA's
request, 	communicated through the mediator, 	the Department put this
revised proposal 	in writing.
Subsequent 	to 	the 	final 	mediation 	session, 	the 	Department
implemented 	its 	proposal 	as 	originally presented 	to 	CSEA.
Discussion
The 	Dills 	Act 	provides 	at 	section 	3517 	for 	the 	State 	employer's
duty to meet and confer in good faith with duly recognized employee
organizations. 	It is a violation of section 3519(c) 	for the State
employer 	to 	refuse 	or 	fail 	to 	meet 	and 	confer 	in 	good 	faith 	with
the 	recognized 	employee 	organization, 	and 	a 	violation 	of 	section
3519(e) 	to 	refuse 	to 	participate 	in 	good 	faith 	in 	the 	mediation
process.
In determining whether the employer has violated section 3519 (c) 	or
(e), 	PERB utilizes either the "per se" or "totality of the conduct"
test, 	depending on the specific 	conduct 	involved and the effect of
such 	conduct 	on 	the 	negotiating 	process 	(Stockton 	Unified 	School
District) 	(1980) 	PERB Decision No. 	143.) 	The totality of conduct
test 	looks 	to 	the 	entire 	course 	of 	negotiations 	to 	determine 	the
respondent's 	subjective 	intention.
As 	the 	Board 	first 	held 	in 	Muroc 	Unified 	School 	District 	(1978)
PERB Decision No. 	80,
It 	is the essence of surface bargaining that a
party 	goes 	through 	the 	motions 	of
negotiations, 	but in fact is weaving otherwise
unobjectionable 	conduct 	into 	an 	entangling

Warning 	Letter
S-CE-808-S
March 22, 	1996
Page 3
fabric 	to 	delay 	or 	prevent 	agreement.
[Footnote 	omitted.]
Factors 	which 	may 	be 	indicative 	of 	bad 	faith 	bargaining 	include
frequent 	turnover 	in 	negotiators; 	negotiators' 	lack 	of 	authority
which 	delays 	the 	bargaining 	process; 	lack 	of 	preparation 	for
bargaining 	sessions; 	missing, 	delaying, 	or 	cancelling 	bargaining
sessions; 	taking 	an 	inflexible 	position 	or 	making 	regressive
bargaining 	proposals. 	(Pajaro 	Valley 	Unified 	School 	District
(1978) 	PERB Decision No. 	51, 	Amador Valley Joint Union High School
District 	(1978) 	PERB Decision No. 	74, 	Healdsburg Union High School
District 	(1980) 	PERB Decision No. 	132, 	San Ysidro School District
(1980) 	PERB 	Decision 	No. 	134, 	Stockton 	Unified 	School 	District,
supra, 	Anaheim Union High School District 	(1981) 	PERB Decision No.
177, 	Oakland Unified School District 	(1982) 	PERB Decision No. 275.)
CSEA's allegation of surface bargaining in this matter rests on two
claims: 	That 	the 	Department 	was 	inflexible 	in 	its 	bargaining
position, 	and that it submitted a regressive proposal. 	Maintenance
of one's position at 	the table 	is not per se evidence of bad faith
bargaining. 	The 	Dills 	Act 	does 	not 	require 	parties 	to 	reach
agreement or make concessions. 	As noted in Oakland Unified School
District, supra:
The 	NLRB 	and 	the 	Courts 	have 	consistently 	ruled 	that
adamant 	insistence 	on 	a 	bargaining 	position 	is 	not
necessarily a refusal to bargain in good faith. 	(NLRB v.
American National 	Insurance Co. 	(1952) 	343 U.S. 	395 	[30
LRRM 2147].) 	See also NLRB v. 	Wooster Division of Borg-
Warner Corporation 	(1958) 	356 U.S. 	342 	[42 LRRM 2034] .
And 	in 	NLRB 	v. 	Herman 	Sausage 	Co. 	(5th 	Cir. 	1960) 	275
F.2d 229 	[45 LRRM 2829], 	the Court 	said:
The obligation of the Employer to bargain. .
in 	good 	faith 	does 	not 	require 	the
yielding 	of 	positions 	fairly maintained.
The proposal 	labeled by CSEA as regressive, 	while it 	represented a
change 	in 	position 	in 	a 	direction 	which 	would 	increase 	working
hours, 	was 	nevertheless 	made 	in 	response 	to 	CSEA's 	proposal 	that
the 	workday 	begin 	earlier. 	The 	factual 	allegations 	surrounding
this 	so-called 	regressive 	proposal 	do 	not 	suggest 	on 	their 	face
that 	the Employer was attempting to 	"torpedo" 	a proposed agreement
or otherwise undermine the negotiations process. 	(Alhambra City &
High School Districts 	(1986) 	PERB Decision No. 	560; see also Fresno
County Office of Education 	(1993) 	PERB Decision No. 	975.) 	However,
even 	if 	it was 	regressive, 	one 	indicia of 	surface bargaining does
not 	state 	a prima 	facie violation.

Warning 	Letter
S-CE-808-S
March 22, 	1996
Page 4
For these reasons the charge, 	as presently written, 	does not state
a prima facie case. 	If there are any factual 	inaccuracies 	in this
letter 	or 	additional 	facts 	which 	would 	correct 	the 	deficiencies
explained 	above, 	please 	amend 	the 	charge. 	The 	amended 	charge
should be prepared on a standard PERB unfair practice 	charge 	form,
clearly 	labeled 	First 	Amended 	Charge, 	contain 	all 	the 	facts 	and
allegations 	you 	wish 	to 	make, 	and 	be 	signed 	under 	penalty 	of
perjury by the 	charging party. 	The 	amended 	charge 	must 	be 	served
on 	the 	respondent 	and 	the 	original 	proof 	of 	service 	must 	be 	filed
with 	PERB. 	If 	I 	do 	not 	receive 	an 	amended 	charge 	or 	withdrawal
from you before April l, 	1996, 	I shall dismiss your charge. 	If you
have any questions, 	please call me at 	(916) 	322-3198 ext. 	359.
Sincerely,
Les 	Chisholm
Regional 	Director
HLC:cb