State of California (Department of Health Services) (PERB 1205S)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA STATE 	EMPLOYEES
ASSOCIATION,
Charging 	Party,
v.
STATE OF CALIFORNIA 	(DEPARTMENT
OF 	HEALTH 	SERVICES),
Respondent.
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) 	Case No. 	SA-CE-933-S
PERB Decision No. 	1205-S
June 	19, 	1997
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Appearances: 	Bonnie Morris, 	Labor Relations Representative,
for California State 	Employees Association; 	State of 	California
(Department of 	Personnel Administration) 	by Linda Buzzini, 	Legal
Counsel, 	for State of California 	(Department of Health Services).
Before Caffrey, 	Chairman; 	Johnson and Dyer, 	Members.
DECISION AND 	ORDER
JOHNSON, 	Member: 	This 	case 	is before the Public Employment
Relations Board 	(Board) 	on appeal 	by the 	California State
Employees Association 	(Association) 	to a Board agent's partial
dismissal 	(attached) 	of 	the unfair practice charge. 	The
Association alleged 	that 	the 	State 	of 	California 	(Department 	of
Health Services) 	(Department) 	violated section 3519(a) 	and 	(c) 	of
the Ralph C. 	Dills Act 	(Dills Act)1 by: 	(1) 	failing to meet with
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:
(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.
(c) 	Refuse or fail 	to meet and confer in
good 	faith 	with a 	recognized 	employee
organization.
the Association 	representatives 	to 	resolve 	employment 	disputes
involving unit members; 	(2) 	unilaterally changing a term and
condition of 	employment 	relating 	to 	the Department's 	flex-time
policy; 	and 	(3) 	refusing to provide the Association with certain
requested 	information.2
The Board has 	reviewed the 	entire 	record in this 	case,
including 	the 	Board agent's 	partial 	warning and dismissal
letters, 	the unfair practice charge, 	the amended charge, 	the
Association's appeal,3 and the Department's 	response. 	The Board
finds 	the partial 	warning and dismissal 	letters 	to be 	free 	of
prejudicial 	error and, 	therefore, 	adopts them as the decision
of 	the Board 	itself.
2A complaint was 	issued with respect 	to 	the 	third
allegation. 	This decision addresses 	only the 	first and
second allegations, 	which were dismissed by the Board agent.
3In its 	appeal, 	the Association attempts to offer new
evidence 	for the 	first 	time 	on appeal. 	PERB Regulation 32635(b)
(PERB regs, 	are codified at Cal. 	Code Regs., 	tit. 	8, 	sec. 	31001
et seq.) 	provides:
(b) 	Unless good cause is shown, 	a charging
party may not 	present 	on appeal 	new charge
allegations 	or new supporting 	evidence.
CSEA has 	not 	offered any 	explanation 	or good 	cause 	for 	submitting
this new evidence 	for the 	first 	time on appeal. 	Therefore, 	it
may not be presented 	for 	the 	first 	time 	on appeal 	and has not
been 	considered by 	the Board. 	(See State 	of 	California 	(State
Teachers Retirement System) 	(1997) 	PERB Decision No. 	1202-S.)
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ORDER
The partial 	dismissal 	of 	the unfair practice 	charge 	in Case
No. 	SA-CE-933-S 	is hereby AFFIRMED.
Chairman Caffrey and Member Dyer joined 	in this Decision.
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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
PERO
March 6, 	1997
Bonnie Morris, 	Labor Relations Representative
California State 	Employees Association
1108 O Street
Sacramento, 	CA 95814
Re: 	PARTIAL DISMISSAL LETTER
California State Employees Association v. 	State of California
(Department 	of 	Health Services)
Unfair Practice Charge No. 	SA-CE-933-S
Dear Ms. Morris:
On January 30, 	1997, 	you filed the above-captioned unfair practice
charge on behalf of the California State Employees Association 	(CSEA).
The charge alleges that the Department of Health Services 	(DHS) 	has
violated sections 3519 	(a), 	(b) 	and 	(c) 	of the Ralph C. 	Dills Act
(Dills Act) 	by demonstrating an unwillingness to work with CSEA in
attempting to resolve 	disputes 	involving employees 	and their
supervisors 	and by unilaterally altering the department's 	flex-time
policy by threatening employees who have 	excessive docks with the
cancellation of their flex-time privileges. 	Additionally you contend
that you requested a copy of DHS's 	flex-time policy on September 27,
1995, 	January 30, 	1996 and October 24, 	1996 and you requested a copy
of the department's policy on dock-time on October 24, 	1996. 	You
contend that you have not received a response 	from the department 	as
to either.
I 	indicated to you, 	in my attached letter dated February 14, 	1997,
that 	certain allegations 	contained in the 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 these allegations 	to state a
prima facie case or withdrew them prior to February 24, 	1997, 	the
allegations would be dismissed. 	You 	subsequently requested and were
granted an additional week to respond to my warning letter.
On March 3, 	1997, 	you filed an amended charge in which you reiterate
the 	facts as alleged in the original 	charge but 	reorganized into three
issues. 	These three issues stated briefly are: 	DHS' 	unwillingness to
meet with CSEA in a cooperative manner to resolve employee complaints;
the unilateral 	implementation of 	a change 	in the dock time and 	flex
time policies; 	and DHS' 	failure to advise CSEA of the policy changes
and the subsequent 	failure to negotiate regarding the changes.
As I indicated in my February 14, 	1997, 	letter, 	in order to establish
a change of 	a past policy you must 	first 	establish what 	the policy
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Partial Dismissal Letter
SA-CE-933-S
March 6, 	1997
Page 2
originally was. 	The additional 	information you provided fails 	to
clarify what 	change occurred.
You indicate 	that your job stewards obtained a copy of Office
Guidelines 	for the Center for Health Statistics which are dated 11/96.
You have also provided a memo dated September 6, 	1995, 	with a copy of
the Office Guidelines. 	The only apparent change in the two documents
is that in Paragraph 2 of the 11/96 revision, 	flexible work hours will
only be available 	to employees who have passed probation. 	Both
documents provide 	that 	flexible work schedules are available with
prior approval 	of 	the employee's 	supervisor subject 	to revocation if
employee's do not 	follow established office policies. 	There 	is no
reference to employees who are docked salary for inadequate 	time on
the books. 	You have not alleged that DHS policy previously allowed
docked employees 	to continue on flex schedules or that 	employees were
removed from flex schedules without prior notice. 	Therefore, 	you have
not established a change in policies.
As to the other allegation that DHS was uncooperative 	in resolving
employee complaints, 	you have failed to resolve the discrepancy I
discussed in my warning letter. 	The 	fact 	that 	the results of meetings
with DHS managers 	or 	supervisors 	are not 	completely satisfactory or
that 	such meetings are unduly delayed 	does not establish evidence of
bad faith. 	Therefore, 	I am dismissing those allegations which fail to
state a prima 	facie case based on the 	facts 	and reasons 	contained in
my February 14, 	1997, 	letter.
Right 	to Appeal
Pursuant to Public Employment Relations Board regulations, 	you may
obtain a review of 	this dismissal 	of 	certain allegations 	contained in
the charge by filing an appeal 	to the Board itself within twenty 	(20)
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. 	3213 	5.) 	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).)
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Partial Dismissal 	Letter
SA-CE-933-S
March 6, 	1997
Page 3
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.
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
Roger 	Smith
Board Agent
Attachment
cc: 	Linda Buzzini, 	Legal Counsel

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
February 14, 	1997
Bonnie Morris, 	Labor Relations Representative
California State 	Employees Association
1108 0 Street
Sacramento, 	CA 95814
Re: 	PARTIAL WARNING LETTER
California State Employees Association v. 	State of
California 	(Department 	of Health Services)
Unfair Practice Charge No. 	SA-CE-933-S
Dear Ms. Morris:
On January 30, 	1997, 	you filed the above-captioned unfair
practice charge on behalf of the 	California State Employees
Association 	(CSEA) . 	The charge alleges that the Department of
Health Services 	(DHS) 	has violated sections 3519 	(a), 	(b) 	and 	(c)
of the Ralph C. 	Dills Act 	(Dills Act) 	by demonstrating an
unwillingness 	to work with CSEA in attempting to resolve 	disputes
involving employees 	and their supervisors 	and by unilaterally
altering the 	department's 	flex-time 	policy by threatening
employees who have excessive docks with the cancellation of 	their
flex-time privileges. 	Additionally you contend that you
requested a copy of DHS's 	flex-time policy on September 27, 	1995,
January 30, 	1996 and October 24, 	1996 and you requested a copy of
the department's policy on dock-time on October 24, 	1996. 	You
contend that you have not 	received a response 	from the 	department
as to either.
California Code of Regs., 	tit. 	8, 	sec 32615 	(a)(5) 	requires that
a charge contain a 	"clear and concise 	statement of 	the 	facts
alleged to constitute an unfair practice." 	The examples you
provide to support your contention that 	the department was not
cooperating with CSEA does not provide 	the 	"clear and concise"
statement of 	facts that would establish a prima facie violation
of the Dills Act.
It is unclear from your charge the specific violation(s) 	of the
Dills Act that you are alleging. 	It appears that you are
contending that 	the department's 	failure to meet with you
regarding Dunigan's 	discipline violated the past practice 	as
established in Article 2.1(a) 	of 	the 	last MOU wherein it 	states
the State 	"agrees to deal with...Union staff on...(e)mployee
discipline cases."
In one example you refer to an attempt 	to resolve employee
Frances Dunigan's 	concern with a corrective memo she 	received
from her supervisor. 	You cite the difficulties in scheduling a
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Partial 	Warning Letter
SA-CE-933-S
February 14, 	1997
Page 2
meeting with the employee's 	supervisor, 	Debbie Balsley. 	In
another example you cite difficulties 	in scheduling a meeting
between employee Gale Bush and her supervisor, 	Christine Linden.
However, 	in the same charge you provide dates of meetings you did
have with DHS personnel 	regarding other employee 	complaints.
Without clarification of these contradictions, 	this portion of
your charge fails to state a violation.
As to the 	allegation that 	the department 	unilaterally implemented
a change regarding the issues of dock-time and flex-time, 	in
order for PERB to 	find that DHS violated its duty to negotiate 	in
good faith, 	you as charging party must demonstrate that: 	(1) 	the
employer breached or altered a written agreement or its own
established past practice; 	(2) 	such action was taken without
notice 	to the 	exclusive representative and an opportunity to
bargain over the change; 	(3) 	the change is not an isolated event
but amounts to a change of policy 	(i.e., 	has a generalized effect
or continuing impact upon unit member's 	terms and conditions of
employment); and, 	(4) 	the change concerns a matter within the
scope of representation. 	(See Grant Joint Union High School
District 	(1982) 	PERB Decision No. 	196.)
You have not 	established what 	the policy was 	regarding dock-time
or flex-time before the change therefore 	it 	is not possible to
determine whether the policy was 	changed. 	The allegation that
the department has 	failed to provide you with their policies 	is
being treated separately.
Further, 	you cited four occasions of employee's pay being docked.
Article 	19.5 of 	the expired 1992-95 Unit 4 memorandum of
understanding provides 	the 	"employees who are placed on a
flexible work schedule will 	comply with reasonable procedures
established by the department." 	You have not 	established that
those 	"reasonable procedures" 	do not 	include the docking of
employee's pay checks. 	For this reason your charge 	fails to
state a prima facie violation as to the allegation that DHS
changed its policies 	relating to 	flex-time or dock-time.
For these reasons the allegations that DHS has 	failed to
cooperate with CSEA, 	and unilaterally altered flex-time and dock-
time policies as presently written, 	do 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 signe	- 	d 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
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Partial Warning Letter
SA-CE-933-S
February 14, 	1997
Page 3
with PERB. 	If 	I do not receive an amended charge or withdrawal
from you before February 24, 	1997, 	I shall dismiss the above-
described allegations 	from your charge. 	If you have any
questions, please call me at 	(916) 	322-3198 ext. 	358.
Sincerely,
Roger Smith
Board Agent