State of California (Department of Personnel Administration) (PERB 1330S)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

CALIFORNIA UNION OF SAFETY )

ENGINEERS, )
Charging Party, y Case No. SA-CE-1140-S
Vv. )’ PERB Decision No. 1330-S
STATE OF CALIFORNIA (DEPARTMENT OF \ May 6, 1999

PERSONNEL ADMINISTRATION) , )

Respondent.

—

Appearance: Carroll, Burdick & McDonough by Gary M. Messing,
Attorney, for California Union of Safety Engineers.

Before Caffrey, Chairman; Dyer and Amador, Members.
DECISION

DYER, Member: This case comes before the Public Employment
Relations Board (Board) on appeal from a Board agent's dismissal
(attached) of the California Union of Safety Employees' (CAUSE)
unfair practice charge. As amended, the charge alleged that the
State of California (Department of Personnel Administration)
violated section 3519(a), (b) and (c) of the Ralph C. Dills Act

(Dills Act)* when it indicated that it would not agree to a

The Dills Act is codified at Government Code section 3512
et seq. Section 3519 provides, in relevant 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

successor memorandum of understanding 	(MOU) 	unless 	the MOU
included 	an 	agreement 	that 	CAUSE 	would 	support 	civil 	service
reform legislation 	required 	to 	implement 	the provisions 	of 	the
MOU.
The 	Board has 	reviewed the 	entire 	record 	in this 	case,
including the warning and dismissal 	letters, 	and CAUSE'S 	appeal.
The Board 	finds 	the warning 	and dismissal 	letters 	to 	be 	free 	from
prejudicial 	error 	and adopts 	them as 	the 	decision of 	the 	Board
itself.
ORDER
The unfair practice 	charge 	in Case No. 	SA-CE-1140-S 	is
hereby DISMISSED WITHOUT 	LEAVE 	TO AMEND.
Chairman 	Caffrey and Member Amador 	joined 	in 	this 	Decision.
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.
22

STATE OF CALIFORNIA 	GRAY DAVIS, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
1031 18th Street, Room 102
Sacramento, CA 95814-4174
(916) 322-3198
March 3, 	1999
Gary M. 	Messing
CARROLL, 	BURDICK & McDONOUGH
400 Capitol Mall, 	Suite 1400
Sacramento, 	CA 	95814-4407
Re: 	California Union of Safety Employees v. 	State of 	California
(Department 	of 	Personnel 	Administration)
Unfair Practice 	Charge No. 	SA-CE-1140-S
DISMISSAL 	LETTER
Dear Mr. 	Messing:
The 	above-referenced unfair practice 	charge 	was 	filed with 	the
Public Employment Relations Board on June 	11, 	1998. 	The 	charge
alleges 	that 	the 	State 	of 	California 	(Department 	of 	Personnel
Administration) 	(DPA) 	violated the Ralph C. 	Dills Act, 	Government
Code section 3519(b) 	and 	(c), 	by failing to bargain in good faith
with the 	California Union of 	Safety Employees 	(CAUSE).
I 	indicated 	to you 	in 	the 	attached letter dated 	February 	1, 	1999,
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, 	the 	charge 	should be
amended. 	You were 	further advised that 	unless 	the 	charge was
amended to 	state 	a prima 	facie 	case 	or 	it 	was 	withdrawn prior 	to
February 10, 	1999, 	the charge would be dismissed.
On February 2, 	1999, 	you requested an extension of 	time 	to 	file
an amended charge. 	An extension was 	granted to 	February 19,
1999, 	and the 	amended charge was 	filed on that 	date.
In the original 	charge, 	CAUSE alleged that 	the State bargained in
bad 	faith because 	it 	insisted 	to 	impasse 	on a nonmandatory or
permissive 	subject 	of bargaining, 	that 	CAUSE 	agree 	to 	support
legislation necessary to 	implement 	the 	State's 	civil 	service
reform proposals. 	CAUSE argued that 	despite 	its objection, 	the
State 	indicated that 	any agreement 	or last, 	best 	and 	final 	offer
must 	include 	CAUSE'S 	support 	for the 	State's 	civil 	service 	reform
legislation. 	CAUSE asserted, 	therefore, 	that the parties were at
impasse 	in negotiations.
The 	amended 	charge 	essentially 	restates 	the 	factual 	allegations
submitted in the 	original 	unfair practice 	charge. 	However, 	the
amended charge provides 	further 	legal 	argument 	in 	support 	of 	its
position that 	the parties were 	at 	impasse 	in negotiations.
. 	.
-~r 	-~( 	,	~~

Dismissal 	Letter
SA-CE-1140-S
Page 	2
CAUSE 	cites 	Department 	of 	Personnel 	Administration 	v. 	Superior
Court 	5 	Cal.App.4th 155 	(1992), 	asserting, 	"the parties 	are 	at
impasse, 	although 	neither 	party may 	have 	invoked 	that 	precise
term. 	As 	the 	courts 	have 	explained, 	'Having 	[bargained 	in good
faith 	in 	an 	endeavor 	to 	reach 	agreement], 	but 	having 	failed 	to
reach agreement, 	the 	parties 	are 	at 	impasse.'" 	(Ibid, 	at
p. 	176.)
CAUSE'S 	reliance 	on 	Department 	of 	Personnel 	Administration,
supra, 	is 	misplaced. 	In that 	decision, 	the 	court 	reviewed the
- -	terms 	and 	conditions 	of 	employment 	the 	State 	employer 	was
authorized 	to 	implement 	after 	the 	parties 	reached 	final 	impasse.
The 	decision 	did 	not 	discuss 	the 	standard 	for 	determining 	when
the 	parties 	had 	reached 	impasse 	in 	negotiations 	pursuant 	to 	Dills
Act 	section 	3518, 	which 	requires 	appointment 	of 	a 	mediator.
(PERB 	Regulation 	32793.)
PERB 	has 	held 	that 	insistence 	to 	impasse 	on 	a 	nonmandatory
subject 	of 	bargaining 	is 	a per 	se 	violation 	of 	the 	duty 	to
bargain 	in 	good 	faith. 	(Lake 	Elsinore 	School 	District 	(1986)
PERB 	Decision No. 	603.) 	As 	explained 	in 	the 	attached 	letter, 	for
purposes 	of 	determining 	whether 	a 	party 	has 	unlawfully 	insisted
to 	impasse 	on 	a 	permissive 	subject, 	PERB 	will 	make 	a
determination 	of 	impasse 	after 	receiving 	a 	formal 	request 	from
one 	or both parties. 	PERB 	Regulation 	32793 	states, 	in part:
(a) 	The 	Board 	shall, 	within 	five working
days 	following 	the 	receipt 	of 	the 	written
request 	for 	appointment 	of 	a 	mediator, 	orally
notify 	the 	parties 	that 	the 	Board 	has
determined 	that:
(1) 	An 	impasse 	exists 	and 	a 	mediator 	has
been 	appointed, 	or
(2) 	Impasse has 	not 	been 	reached.
(c) 	In 	determining whether 	an 	impasse
exists, 	the 	Board 	shall 	investigate 	and 	may
consider 	the 	number 	and 	length 	of 	negotiating
sessions 	between 	the 	parties, 	the 	time 	period
over 	which 	the 	negotiations 	have 	occurred,
the 	extent 	to 	which 	the 	parties 	have 	made 	and
discussed 	counter-proposals 	to 	each 	other,
the 	extent 	to 	which 	the 	parties 	have 	reached
tentative 	agreement 	on 	issues 	during 	the
negotiations, 	the 	extent 	to 	which unresolved
issues 	remain, 	and other 	relevant 	data.
(

Dismissal 	Letter
SA-CE-1140-S
Page 3
Parties 	may 	jointly agree 	they 	have 	reached an 	impasse 	in
negotiations. 	(Dills Act 	section 3518.) 	However, 	for PERB 	to
find 	a 	that 	a party has 	bargained 	in bad 	faith by 	insisting 	to
impasse 	on a permissive 	subject, 	PERB must 	make 	a determination
that 	the parties 	are at 	impasse. 	In the present 	case, 	although
the parties 	have 	taken 	firm positions 	concerning 	the 	State's
civil 	service 	reform proposals, 	neither party has 	requested that
PERB make 	a determination of 	impasse, 	nor did they mutually
declare 	impasse. 	Accordingly, 	the 	factual 	allegations 	fail 	to
demonstrate 	that 	the 	State 	unlawfully 	insisted to 	impasse 	that
CAUSE 	support 	legislation necessary 	to 	implement 	the 	State's
civil 	service 	reform proposals. 	Therefore, 	this 	allegation must
be 	dismissed.
Furthermore, 	as discussed in the attached letter, 	under a pre-
impasse 	conditional 	bargaining 	theory, 	the 	charge 	also 	fails 	to
state 	a prima 	facie 	case. 	Under the 	totality of 	the 	conduct
test, 	the Board 	concluded in State 	of 	California 	(Department 	of
Personnel Administration) 	(1998) 	PERB Decision No. 	1249-S 	(DPA),
that 	conditioning agreement 	on 	the 	union's 	"endorsement" 	of
legislation 	to 	implement 	the 	State's 	civil 	service 	reform
proposals 	did not 	rise 	to 	the 	level 	of bad faith.
The 	present 	charge presents 	the 	same 	allegation 	of 	conditional
bargaining over 	a proposal 	to 	support 	the 	State's 	civil 	service
reform 	legislation. 	For 	the 	reasons 	adopted by the 	Board 	in DPA,
this 	allegation 	fails 	to 	state 	a prima 	facie 	case under a
conditional 	bargaining 	theory 	and must 	be 	dismissed.
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 Regs., 	tit. 	8,
sec. 	32635(a).) 	Any document 	filed with the Board must 	contain
the case name and number, 	and the original 	and five 	(5) 	copies of
all 	documents 	must 	be 	provided 	to 	the 	Board.
A document 	is 	considered 	"filed" 	when 	actually 	received 	before
the 	close of business 	(5 	p.m.) 	on the 	last 	day set 	for 	filing or
when mailed by certified or Express 	United States mail, 	as 	shown
on 	the postal 	receipt 	or postmark, 	or delivered to 	a 	common
carrier promising overnight 	delivery, 	as 	shown on the 	carrier's
receipt, 	not 	later than the 	last day set 	for filing. 	(Cal. 	Code
Regs., 	tit. 8, 	sec. 32135(a); see also Cal. Code Regs., 	tit. 	8,
sec. 	32130.)
A document 	is 	also 	considered 	"filed" 	when 	received by 	facsimile
transmission before 	the 	close 	of 	business 	on 	the 	last 	day 	for
'
' (

Dismissal 	Letter
SA-CE-1140-S
Page 4
filing 	together 	with 	a 	Facsimile 	Transmission 	Cover 	Sheet 	which
meets the requirements of Cal. 	Code Regs., 	tit. 8, 	sec. 	32135 (d)',
provided the 	filing party also places 	the original, 	together with
the 	required number of 	copies 	and proof 	of 	service, 	in the U.S.
mail. 	(Cal. 	Code. 	Regs., 	tit. 	8, 	secs. 	32135(b), 	(c) 	and 	(d);
see also Cal. 	Code Regs., 	tit. 	8, 	secs. 	32090 and 32130.)
The Board's 	address 	is:
Public 	Employment 	Relations 	Board
Attention: 	Appeals Assistant
1031 	18th Street
Sacramento, 	CA 	95814-4174
FAX: 	(916) 	327-7960
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
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 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. 	A document 	filed by 	facsimile 	transmission
may be 	concurrently 	served via 	facsimile 	transmission 	on 	all
parties to the proceeding. 	(Cal. 	Code Regs., 	tit. 	8, 	sec.
32135(c).)
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 Regs., 	tit. 	8, 	sec. 	32132.)
( 	(

Dismissal 	Letter
SA-CE-1140-S
Page 5
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 Robin Wright 	Wesley
Regional 	Attorney
Attachment
cc: 	Edmund K. 	Brehl
( 	(

STATE OF CALIFORNIA 	I 	GRAY DAVIS, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
1031 18th Street, Room 102
Sacramento, CA 95814-4174
(916) 322-3198
February 1, 	1999
Gary M. 	Messing
CARROLL, 	BURDICK & McDONOUGH
400 Capitol Mall, 	Suite 1400
Sacramento, 	CA 	95814
Re: 	California Union of 	Safety Employees v. 	State of 	California
(Department 	of 	Personnel 	Administration)
Unfair Practice 	Charge No. 	SA-CE-1140-S
WARNING 	LETTER
Dear Mr. 	Messing:
The 	above-referenced unfair practice 	charge 	was 	filed with 	the
Public Employment 	Relations Board on June 	11, 	1998. 	The 	charge
alleges 	that 	the 	State 	of 	California 	(Department 	of 	Personnel
Administration) 	(DPA) 	violated the Ralph C. 	Dills Act, 	Government
Code 	section 3519(b) 	and 	(c), 	by failing to bargain in good faith
with the 	California Union of 	Safety Employees 	(CAUSE).
CAUSE 	is 	the 	exclusive 	representative 	for 	state 	employees 	in
State Bargaining Unit 	7. 	The 	1992-1995 	memorandum of
understanding between 	CAUSE 	and the 	State 	expired on 	June 	30,
1995. 	On May 30, 	1995, 	CAUSE and the State initiated
negotiations 	for a 	successor agreement. 	CAUSE alleges 	that 	from
the 	onset 	of 	negotiations, 	DPA proposed that 	CAUSE 	support
legislation necessary 	to 	implement 	negotiated civil 	service
reforms. 	Since May 30, 	1995, 	CAUSE and DPA, 	the Governor's
bargaining representative, 	engaged 	in negotiations 	and were 	able
to 	reach 	tentative 	agreement 	on 	numerous 	economic 	and noneconomic
proposals.
On May 6, 	1998, 	Michael Navarro, 	DPA Labor Relations Officer,
sent 	a 	letter 	to 	CAUSE which 	contained a 	"package 	offer,"
including 	specified 	salary 	increases 	and a 	list 	of 	civil 	service
reform proposals. 	The descriptions 	of 	three 	of 	the 	civil 	service
reform proposals 	included the 	statement, 	"Requires 	union 	support
of 	statutory changes 	necessary to 	implement 	terms 	of 	MOU."
Mr. 	Navarro 	stated in his 	letter,
The 	enclosed is 	a package 	offer which
includes 	the 	civil 	service 	reforms 	on the
attached 	list. 	Please 	recognize 	that 	any
successor 	contract 	would have 	to 	include 	all
of 	the 	State's 	civil 	service 	reform
proposals. 	In addition to the above, 	we
would expect 	to 	include 	all 	TAs 	that 	have
~

Warning 	Letter
SA-CE-1140-S
Page 2
been reached to date. 	Finally, 	we would of
course 	have 	to resolve 	all 	other issues 	that
remain on 	the 	table.
Negotiations 	between 	the 	parties 	continued at 	a bargaining
session held on May 18, 	1998. 	The bargaining session minutes
prepared by CAUSE 	report 	that 	Mr. 	Navarro 	stated,
If 	we 	are 	going to have 	a 	successor
agreement, 	we need to get 	through economics
and need you to buy-into 	all 	of 	the 	civil
service 	reforms. 	The 	economics 	and civil
service 	reforms 	are 	first 	and foremost, 	and
we 	need to 	get 	over 	that 	first 	before 	we 	can
move on to 	the others.
You will 	notice, 	in the 	letter that 	conveyed
this offer, 	I talked in terms of this was 	the
best 	economic 	offer we 	are 	prepared to make,
never used the words 	"last, 	best 	and final"
terms, 	that 	implies 	that 	I 	have no movement
anywhere. 	I have no movement 	in economics,
no movement 	in civil 	service 	reform, 	but
there 	are 	other 	issues 	that 	are 	out 	there
that 	we 	haven't 	reached 	agreement 	on which we
can maybe 	tweak a 	little bit, 	but 	in terms 	of
economics 	and civil 	service 	reforms 	we 	have
to have this.
At 	the conclusion of 	the bargaining 	session, 	CAUSE 	indicated that
it 	could not 	accept 	the 	State's 	civil 	service reform proposals.
On May 22, 	1998, 	CAUSE sent a letter to Mr. 	Navarro reiterating
its 	rejection of 	the 	State's package offer, 	which 	included the
requirement 	that 	CAUSE 	support 	the 	State's 	civil 	service 	reform
legislation. 	The 	letter continued,
CAUSE 	is 	unwilling 	to 	consider 	further 	any
proposals which require 	it 	to 	support 	these
nonmandatory subjects 	of 	bargaining 	and will
not 	discuss 	or negotiate 	these 	subjects 	any
further. 	In light of our position, 	are you
willing 	to make 	further proposals 	that 	do 	not
include 	CAUSE 	supporting the 	civil 	service
reform 	legislation 	and 	to 	continue
negotiations without 	this 	permissive 	subject
of 	bargaining?
(

Warning 	Letter
SA-CE-1140-S
Page 3
Mr. 	Navarro responded in a letter dated June 	1, 	1998. 	He 	stated
that 	the 	subjects 	which make up 	the 	civil 	service 	reform
proposals 	are 	mandatory 	subjects 	of 	bargaining which 	require
statutory authority to 	implement. 	Mr. 	Navarro 	also 	stated that
the 	State 	was 	unwilling 	"to make proposals 	that 	do 	not 	include
your 	support 	of 	civil 	service 	reform 	and 	its 	requisite
legislation."
CAUSE 	contends 	that 	because 	the 	State 	has 	indicated 	that 	any
agreement or 	last, 	best 	and final 	offer must 	include 	CAUSE'S
support 	for 	the 	State's 	civil 	service 	reform legislation,
regardless 	of 	any concessions 	CAUSE may be willing 	to make, 	the
parties are at 	impasse 	in negotiations. 	Accordingly, 	CAUSE
argues 	that 	the 	State 	violated 	its 	duty to bargain 	in good 	faith
by 	insisting 	to 	impasse 	on a 	nonmandatory subject 	of 	bargaining,
that 	CAUSE 	support 	the 	State's 	civil 	service 	reform legislation.
CAUSE 	contends 	that 	by 	insisting 	that 	it 	support 	the 	legislation
necessary to 	implement 	negotiated civil 	service 	reforms, 	the
State 	has 	unlawfully 	engaged 	in 	conditional 	bargaining.
Based upon the 	facts 	stated above, 	the 	charge 	fails 	to 	state 	a
prima 	facie violation of 	the 	Dills Act.
The Dills Act 	imposes on parties 	subject 	to 	its 	jurisdiction, 	a
mutual 	obligation to bargain 	in good 	faith. 	The 	standard
generally 	applied 	to 	determine 	whether 	good 	faith 	bargaining 	has
occurred is 	called the 	"totality of 	conduct" 	test. 	This 	test
reviews 	the 	entire 	course 	of 	bargaining 	conduct 	to 	determine
whether 	the 	parties 	have 	negotiated 	in good 	faith with 	the
"requisite 	subjective 	intention of 	reaching an agreement."
(Pajaro Valley Unified School 	District 	(1978) 	PERB Decision
No. 	51.)
Certain acts, 	however, 	have such potential 	to frustrate
negotiations 	that 	they are held to be 	"per 	se" 	unlawful 	without
any finding of 	subjective bad faith. 	(Ibid.) 	For example, 	the
Board has 	held that 	insistence 	to 	impasse 	on a nonmandatory
subject 	of bargaining 	is 	a per se violation of 	the duty to
bargain 	in good 	faith. 	(Lake 	Elsinore 	School 	District 	(1986)
PERB Decision No. 	603.)
Parties 	are 	free 	to propose and bargain, over nonmandatory
subjects of bargaining. 	However, 	once a party makes 	it 	clear
that 	it 	does 	not 	wish to bargain 	further over a nonmandatory
subject, 	the proponent of 	the nonmandatory proposal violates 	the
Dills Act 	if 	it 	insists 	to 	impasse 	on 	the 	inclusion of 	the
nonmandatory subject 	in the 	agreement. 	(Ibid.)
To establish whether parties 	are at 	impasse, 	PERB will 	make 	a
determination of 	impasse 	after 	receiving a 	formal 	request 	from
I 	(

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one or both parties.1 PERB Regulation 32792(a) 	states, 	in
pertinent 	part:
After 	declaring 	impasse 	orally or 	in writing
to 	the 	other party or 	after 	jointly 	declaring
impasse, 	either or both parties 	may request
the 	Board 	to 	determine 	that 	an 	impasse 	exists
and appoint 	a mediator.
CAUSE 	clearly expressed its position 	in 	its May 22, 	1998 	letter
to Mr. 	Navarro 	that 	it 	did not 	wish to 	further consider or
bargain over proposals 	requiring 	it 	to 	support 	the 	State's 	civil
service 	reform legislation. 	However, 	the 	alleged facts 	do not
support 	a 	claim that 	the 	State 	insisted 	to 	impasse 	over 	this
proposal. 	The parties are not 	at 	impasse. 	While 	the 	factual
allegations 	indicate 	that 	DPA has 	taken 	a 	firm position 	on
certain proposals 	involving 	economics 	and 	civil 	service 	reform,
PERB 	has 	not 	been requested by the parties 	to make 	a
determination of 	impasse. 	Therefore, 	this allegation fails 	to
state 	a prima 	facie 	case.
Under the 	totality of 	the 	conduct 	test, 	it 	is 	an indication of
bad 	faith to 	impose 	unlawful 	conditions 	during bargaining, 	such
as 	conditioning 	agreement 	of 	economic 	matters 	on 	agreement 	of
noneconomic matters. 	(Fremont 	Unified School 	District 	(1980)
PERB Decision No. 	13 6.) 	The Board has 	previously addressed 	the
issue 	that 	the 	State 	unlawfully engaged 	in 	conditional 	bargaining
prior 	to 	impasse 	by proposing 	that 	an 	exclusive 	representative
support 	legislation 	to 	implement 	the 	State's 	civil 	service 	reform
proposals. 	(State 	of 	California 	(Department 	of 	Personnel
Administration) 	(1998) 	PERB Decision No. 	1249-S 	(DPA).)
In DPA, 	the Board considered the 	claim that 	in exchange 	for 	the
State 	agreeing 	to 	the 	union's 	economic 	demands, 	the union must
"endorse" 	future 	legislation to 	implement 	the 	State's 	civil
service 	reform demands. 	The 	Board rejected a 	claim of 	unlawful
conditional 	bargaining, 	concluding that 	this 	conduct 	did not 	rise
to 	the 	level 	of 	bad 	faith because 	such 	endorsement 	was 	not
outside 	the union's 	control. 	Since 	the present 	charge 	raises 	the
same 	claim of 	conditional 	bargaining over 	a proposal 	to 	support
the 	State's 	civil 	service 	reform legislation, 	the 	charge 	must be
dismissed 	for 	failure 	to 	state 	a prima 	facie violation.
For these reasons 	the 	charge, 	as presently written, 	does not
state 	a prima 	facie 	case. 	If 	there 	are 	any factual 	inaccuracies
1PERB 	regulations 	are 	codified 	at 	California 	Code 	of
Regulations, 	title 	8, 	section 31001 et 	seq. 	See PERB Regulation
32793.
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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 	have 	the 	case 	number written on 	the 	top 	right
hand 	corner 	of 	the 	charge 	form. 	The 	amended charge 	must 	be
served on 	the 	respondent's 	representative 	and 	the 	original 	proof
of 	service must 	be 	filed with PERB. 	If 	I 	do not 	receive 	an
amended charge 	or withdrawal 	from you before February 10, 	1999. 	I
shall dismiss the charge. 	If you have any questions, 	please call
me at 	(916) 	322-3198, 	ext. 	305.
Sincerely,
Robin Wright Wesley
Regional 	Attorney
( 	(