State of California (Board of Equalization) (PERB 1235S)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA STATE 	EMPLOYEES
ASSOCIATION,
Charging 	Party,
v.
STATE 	OF 	CALIFORNIA 	(BOARD
OF 	EQUALIZATION),
Respondent.
Case No. 	SA-CE-950-S
PERB Decision No. 	1235-S
November 24, 	1997
Appearances: 	Rosmaire Duffy, 	Senior Labor Relations
Representative, 	for California State Employees Association; 	State
of 	California 	(Department 	of 	Personnel Administration) 	by Michael
E. 	Gash, 	Labor Relations Counsel, 	for State of California 	(Board
of 	Equalization).
Before Caffrey, 	Chairman; 	Johnson and Dyer, 	Members.
DECISION
JOHNSON, 	Member: 	This 	case is before the Public Employment
Relations 	Board 	(PERB or Board) 	on appeal 	of a Board agent's
dismissal 	(attached) 	of 	an unfair practice 	charge 	filed by the
California State Employees Association 	(CSEA). 	In its 	charge,
CSEA alleged 	that 	the 	State 	of 	California 	(Board of 	Equalization)
(State) 	violated section 3519(a) 	and 	(b) 	of the Ralph C. 	Dills
Act 	(Dills Act)1 when it: 	(1) 	unilaterally implemented a
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. 	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.
relocation of 	its Ventura 	office without 	providing 	CSEA with an
opportunity to meet and confer over 	the 	impact 	of 	the 	decision;
(2) 	responded belatedly to an information request; 	(3)
implemented 	the proposal 	without 	referring 	it 	to 	the main
bargaining table; 	and 	(4) 	failed to 	"sunshine" 	the proposal prior
to negotiations.
The 	Board has 	reviewed the entire 	record 	in this 	case,
including 	the 	original 	and amended unfair practice 	charge, 	the
warning and dismissal letters, 	CSEA's appeal, 	and the State's
response. 	The Board 	finds 	the warning and dismissal 	letters 	to
be 	free 	of prejudicial 	error and adopts 	them as 	the decision of
the 	Board 	itself 	consistent 	with 	the 	following 	discussion.
CSEA'S 	APPEAL
On appeal, 	CSEA challenges 	the Board agent's 	conclusion
regarding 	the 	unilateral 	change 	allegation by 	repeating 	the
argument 	that 	the 	State 	failed to provide adequate notice 	in
advance 	of 	the pending relocation. 	CSEA also 	repeats 	its 	earlier
demand 	that 	"all 	future 	issues 	on 	. . . 	management-initiated
changes 	should be referred to 	the 	[main] 	bargaining table."
Further, 	CSEA asserts 	that 	the Board agent 	did not 	"fully
take 	. 	. 	. 	into consideration" 	the impact of the delay in the
State's 	response 	to 	the 	CSEA information 	request.
22

STATE'S 	OPPOSITION TO APPEAL
The 	State 	supports 	the Board agent's 	dismissal.
DISCUSSION
On appeal, 	CSEA continues 	to claim that 	it 	received
inadequate or 	"defective" 	notice of 	the State's proposal 	to
relocate 	the Ventura office. 	However, 	we agree with the Board
agent 	that 	CSEA received several 	forms2 of 	notice 	from the 	State
in December 	1996 	and January 1997, 	but 	did not 	indicate a desire
to bargain until 	February 1997, 	a month after the move occurred.
CSEA failed 	to make 	a timely demand 	to bargain.
CSEA also 	claims 	a 	right 	to have negotiations 	on this 	issue
referred 	to 	the main bargaining 	table 	during negotiations 	over a
successor collective bargaining agreement. 	However, 	CSEA offers
no 	legal 	support 	for this 	assertion.3 Under the Dills Act 	and
PERB precedent, 	as discussed by the Board agent, 	CSEA has 	the
right 	to negotiate 	the effects 	of proposed changes 	on matters
within the 	scope of 	representation, 	upon request. 	We know of no
authority which gives 	CSEA the 	right 	to 	dictate 	the 	setting 	in
which 	such negotiations 	must 	occur.
CSEA also 	challenges 	the 	Board agent's 	review of 	the 	refusal
to provide 	information allegation. 	We note 	that 	in 	its unfair
2In fact, 	on appeal, 	CSEA itself acknowledges 	receiving
notice of 	the proposed change on December 18, 	1996, 	"when a
verbal 	notice was 	given."
3We note 	that 	CSEA's 	demand glosses 	over the 	fact 	that,
under longstanding 	PERB precedent, 	the 	employer's 	decision to
relocate an office 	is nonnegotiable. 	(See warning letter, 	p. 	2,
citing Newman-Crows 	Landing Unified School District 	(1982) 	PERB
Decision No. 	223.)
33

practice 	charge, 	CSEA alleged that 	the State 	took 	"over a month"
to provide 	information requested on January 17, 	1997. 	However,
CSEA's 	charge 	also 	states 	that 	the 	State 	responded 	on
February 11, 	1997, 	less 	than a month later. 	The Board agent
noted 	these 	facts 	and reached 	the 	logical 	conclusion 	that 	CSEA
had failed to 	support 	its 	allegation. 	We agree, 	and 	find 	that
CSEA's argument 	is without merit.
ORDER
The unfair practice 	charge 	in Case No. 	SA-CE-950-S 	is hereby
DISMISSED WITHOUT LEAVE 	TO AMEND.
Chairman 	Caffrey and Member Dyer 	joined 	in 	this 	Decision.
44

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
April 23, 	1997
Rosemaire Duffy
Senior Labor Relations Representative
California State Employees Association
1108 O Street
Sacramento, 	CA 95814
Re: 	DISMISSAL LETTER
California State Employees Association v. 	State of
California 	(Board of Equalization)
Unfair Practice Charge No. 	SA-CE-950-S
Dear Ms. Duffy:
The above referenced charge alleges that State of California,
Board of Equalization, 	(BOE) 	violated Government Code sections
3519 (b) 	& (c), 3517, 3516.5, 3523 	(Dills Act). 	Specifically,
you allege that BOE made a unilateral 	change and refused to
bargain over it in violation of the Dills Act.
I indicated to you, 	in my attached letter dated April 2, 	1997,
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
10, 	1997 	(later extended to April 18, 	1997), 	the charge would be
dismissed.
On April 22, 	1997, 	I received your first amended charge. 	The
amended charge contains the facts summarized as 	follows. 	On
December 18, 	1996, Mr. Gorham, 	manager of labor relations at BOE
verbally notified Ms. 	Tut Tate, 	the Manager of the Civil Service
Division of CSEA that a lease had been signed to relocate the
Ventura BOE office effective January 7, 	1997. 	Ms. 	Tate indicated
to Mr. 	Gorham that when you 	[Rosemaire Duffy] 	were available you
would be contacting him. 	Mr. 	Gorham stated that he would like to
discuss the move and the concept of the Joint Taxpayers Service
Center. 	On December 20, 	1996, 	Mr. Gorham sent a confirming
letter to Ms. 	Tate regarding relocation of the BOE office. 	You
have reason to believe that Mr. 	Gorham knew at that time that you
were on vacation from December 16, 	1996 to January 6, 	1997. 	You
also believe that Mr. 	Gorham knew that most of the CSEA
Bargaining Services 	staff was on vacation during the Christmas
holidays.

C
On January 7, 	1997, Mr. Gorham notified Ms. 	Tut Tate that the
relocation date had been extended to January 21, 	1997. 	On
January 17, 	1997, you sent a letter to Mr. Gorham, 	requesting
information regarding the move. 	Mr. 	Gorham provided this
information in a February 11, 	1997 letter.
On February 20, 	1997, you sent two letters to Mr. 	Gorham. 	The
letter attached to the original charge states 	in pertinent part:
[i]f the Board of Equalization wishes to
relocate or close any Board of Equalization
offices, 	state management must refer this
item to the main table for CSEA bargaining
units 	impacted by your department's proposal.
As you know, 	the parties are involved in
successor collective bargaining agreements 	in
all CSEA units and the state can make no
changes on anything within the scope of
representation while the parties are
continuing to bargain. 	If the department has
implemented your proposed changes, 	they must
be 	rescinded immediately.
The February 20th letter attached to the amended charge states in
pertinent part:
[t]he purpose of this letter is to notify you
that 	CSEA will not entertain any notices or
proposals 	from the Board of Equalization for
meet and confer relative to issues that 	fall
within the scope of representation. 	If the
Board of Equalization wishes to propose
changes to any matter within the scope of
representation, 	the department should refer
these items to the main bargaining table for
the appropriate CSEA bargaining unit.
As described in the warning letter, 	in order to establish a prima
facie case of a unilateral change, 	CSEA must demonstrate that the
change was made without reasonable notice. 	The information
provided in the amended charge does not meet this burden.
As described in my 	April 2, 	1997 letter, 	the key issues raised
by these 	facts is whether the State provided reasonable notice to
CSEA of its intention to move the BOE office prior to the move.
BOE provided both verbal and written notice to Ms. 	Tate, 	a high
level CSEA official, 	approximately 20 days prior to the original
moving date and more than 30 days prior to the date of the actual
move. 	You assert that this notice is inadequate because it fell
during a holiday period and while you were on vacation. 	However,
this does not change the fact that BOE did provide proper notice
to Ms. 	Tate who has authority to act on behalf of CSEA. 	CSEA
failed to notify BOE of your absence or its desire to bargain
these issues. 	The first CSEA communication with BOE was your
't	
C

C 	C
January 	17th 	letter which did not 	request 	to meet 	and 	confer with
BOE, 	but 	rather requested 	information relating to 	the 	relocation.
The second communication, 	your letters of February 20, 	1997, 	did
not make 	a 	clear request 	to bargain either.
In summary, 	BOE provided reasonable notice of 	its 	intentions 	and
CSEA failed to make 	a timely request 	to bargain. 	Thus, 	CSEA has
not presented a prima 	facie 	case of 	a unilateral 	change. 	In
addition, 	CSEA has not made 	a 	clear request 	to bargain over 	the
effects and, 	therefore, 	BOE has not 	refused to bargain.
Therefore, 	I 	am dismissing the 	charge based on the 	facts 	and
reasons 	contained in my April 	2, 	1997 	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 	(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. 	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.
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
.J	 	)

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
Stacey Malcom
Board 	Agent
Attachment
cc: 	Michael Gash, 	Labor Relations 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
April 	2, 	1997
Rosmaire Duffy-
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 	(Board of Equalization)
Unfair Practice Charge No. 	SA-CE-950-S
Dear Ms. Duffy:
On March 3, 	1997, 	you filed a charge on behalf of California
State Employees Association 	(CSEA) 	in which it is alleged that
the Board of Equalization 	(BOE) 	violated sections 3516.5, 	3517,
3519 	(b), 	(c), 	and 3523 of the State Employer-Employee Relations
Act 	(SEERA).
My investigation of the charge reveals the 	following relevant
facts.
On December 16, 	1996, 	Robert Gorham, 	manager of labor relations
at BOE notified Ms. 	Tut Tate, 	the Manager of the Civil Division
of CSEA, 	that it would be relocating its Ventura office on
January 6, 	1997. 	A request was made by BOE to have a meeting
with CSEA to resolve any concerns CSEA may have about the move.
The relocation date was later changed to January 21, 	1997.
On January 17, 	1997, 	CSEA requested information on the status of
the relocation of the Ventura office. 	BOE provided a response,
answering all of CSEA's questions, 	on February 11, 	1997. 	On
February 20, 	1997 CSEA requested to bargain with BOE over the
relocation of the Ventura Office on February 20, 	1997, 	in a
letter which stated:
"if the Board of Equalization wishes to relocate or
close any... 	offices, 	state management must refer this
item to the main table for CSEA bargaining units
impacted by your department's proposal."
CSEA asserts that the above facts support a violation of a
unilateral change by the state.

r
A charging party will 	establish 	a prima 	facie 	case 	for 	a
unilateral 	change when it 	shows:1
(1) 	an employer breached or altered the parties' 	written
agreement
(2) 	employer acted without 	giving the 	exclusive 	representative
reasonable 	notice 	or 	an opportunity 	to bargain
(3) 	breach or alteration 	is 	not 	an 	isolated breach of 	contract,
but 	amounts 	to a 	change 	in policy
(4) 	change 	in policy concerns 	a matter within the 	scope of
representation
The main 	issue 	for the 	facts 	here 	are 	to determine 	if 	the 	notice
given by BOE 	to CSEA was 	reasonable. 	To 	see 	if 	the notice was
reasonable 	it 	is 	necessary to 	look at 	the 	requirements 	that
notices must 	include prior to making a change. 	Victor Valley
Union High School District, 	(1986) 	PERB Dec. 	No. 	565, 	found that
an employer who was 	proposing 	a 	change 	had 	to 	satisfy 	several
factors.
(1) 	Notice of 	a proposed change must be given to 	an
official 	of 	the 	employee 	organization who has 	the
authority to 	act 	on behalf 	of 	the 	organization.
(2) 	The notice must be communicated in a manner which
clearly 	informs 	the 	recipient 	of 	the proposed change.
(3) 	Notice must be given 	sufficiently in advance of 	a
firm decision 	to make 	a 	change 	to 	allow the 	exclusive
representative 	a 	reasonable 	amount 	of 	time 	to 	decide
whether to make 	a demand to negotiate, 	a 	"reasonable
amount 	of 	time" 	necessarily depends 	upon 	the 	individual
circumstances 	of 	each case.
The 	facts here 	establish that 	the notice was given to Ms. 	Tate,
who has 	authority to act 	on behalf 	of 	CSEA. 	CSEA was 	aware 	that
BOE would be 	relocating 	its 	Ventura 	office 	from the 	notice 	given
to Ms. 	Tate on December 16, 	1996. 	Also, 	CSEA sent a letter
dated, 	January 17, 	1997, 	which sought 	information about the
relocation, 	but which gave no 	indication to BOE 	that 	CSEA wished
to bargain the 	effects of 	the 	relocation of 	the Ventura office.
BOE's 	notice 	to 	CSEA regarding 	the 	relocation of 	its 	Ventura
office was 	reasonable.
To 	find a violation by BOE 	it 	will 	have 	to be 	found 	that 	CSEA
requested to bargain over the 	effects 	of 	the 	relocation, 	which
BOE 	failed to 	comply with. 	However, 	CSEA did not 	indicate 	a
desire 	to bargain with BOE until 	five 	weeks 	after 	implementation
of the change, 	when it sent a letter dated, 	February 20, 	1997.
. .. . -
1Furthermore, 	it 	must be 	acknowledged that 	the 	decision 	to
relocate 	the 	office 	is 	a matter of 	"fundamental 	management
concern" 	which requires 	such decisions be 	left 	to 	the 	employer's
prerogative. 	Newman-Crows Landing Unified School 	District.
(1982) 	PERB Dec. 	No. 	223. 	Therefore, 	only the effects would be
bargainable 	by 	CSEA.
,. ( 	(

c 	c
Even at that time CSEA did not state 	"we want to bargain over the
effects of the relocation" 	instead they stated that 	"management
must 	refer this 	item to the main table 	for CSEA bargaining." 	As
such, 	CSEA waived its right to bargain over the effects of the
Ventura office relocation.
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 10, 	1997. 	I
shall dismiss your charge. 	If you have any questions, 	please
call me at 	(916) 	322-3198.
Sincerely,
Stacey 	Malcom
Board 	Agent