State of California (Department of General Services) (PERB 1394S)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
INTERNATIONAL UNION OF OPERATING
ENGINEERS, 	CRAFT MAINTENANCE
DIVISION, 	UNIT 12,
Charging 	Party,
v.
STATE OF 	CALIFORNIA 	(DEPARTMENT
OF GENERAL 	SERVICES),
Respondent.
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) 	Case No. 	SA-CE-1263-S
PERB 	Decision No. 	1394-S
July 	7, 	2000
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Appearances: 	Van Bourg, 	Weinberg, 	Roger & Rosenfeld by
William A. 	Sokol, 	Attorney, 	for 	International Union of Operating
Engineers, 	Craft Maintenance Division, 	Unit 12; 	State of
California 	(Department 	of 	Personnel 	Administration) 	by Wendi 	L.
Ross, 	Labor Relations Counsel, 	and Sandra L. 	Lusich, 	Legal
Counsel, 	for State 	of 	California 	(Department 	of 	General
Services).
Before Dyer, 	Amador and Baker, 	Members.
DECISION
AMADOR, 	Member: 	This 	case 	comes before the 	Public
Employment 	Relations 	Board 	(Board) 	on appeal 	by 	International
Union of Operating Engineers, 	Craft Maintenance Division, 	Unit 	12
(IUOE) 	from a Board agent's dismissal 	(attached) 	of 	its unfair
practice 	charge. 	The 	charge 	alleged 	that 	the 	State 	of 	California
(Department of General Services) 	(State) 	refused to grant Larry
Atwood's 	transfer 	request 	unless 	he 	agreed to drop 	a 	grievance.
This 	conduct 	is 	alleged to violate 	section 3519(a) 	and 	(b) 	of 	the
Ralph C. 	Dills Act 	(Dills A c t ) 1
1The 	Dills Act 	is 	codified at 	Government 	Code 	section 	3512
et 	seq. 	Dills Act 	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
this 	subdivision, 	"employee" 	includes 	an
applicant 	for 	employment 	or 	reemployment.
(b) 	Deny 	to 	employee 	organizations 	rights
guaranteed 	to 	them 	by 	this 	chapter.
The 	Board 	has 	reviewed 	the 	entire 	record 	in 	this 	case,
including 	the 	unfair 	practice 	charge, 	the 	warning 	and 	dismissal
letters, 	IUOE's 	appeal 	and 	the 	State's 	response. 	The 	Board 	finds
the 	dismissal 	and 	warning 	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-1263-S 	is
hereby 	DISMISSED 	WITHOUT 	LEAVE 	TO 	AMEND.
Member 	Dyer 	joined 	in 	this 	Decision.
Member 	Baker's 	concurrence 	begins 	on 	page 	3.
22

BAKER, 	Member, 	concurring: 	I concur in the majority's
decision to dismiss 	this 	unfair practice 	charge.
I 	write 	separately to 	emphasize 	certain 	facts 	and to
identify an 	issue 	that 	should be 	dealt 	with by the 	Public
Employment Relations Board 	(Board) 	in future cases.
The 	record reflects 	that 	the 	Board agent 	sent 	the
International Union of Operating Engineers, 	Craft Maintenance
Division, 	Unit 	12 	(IUOE) 	a warning letter indicating that 	the
charge would be 	dismissed 	if 	IUOE 	did not 	specify when 	the
alleged violations 	occurred. 	She 	also 	informed 	IUOE 	of 	its 	right
to amend the 	charge 	to cure 	this 	defect, 	but 	IUOE did not 	do 	so.
Because 	IUOE 	failed 	to provide 	the 	critical 	information 	requested
by the Board agent 	in the warning letter, 	this 	charge 	is
appropriately dismissed as 	untimely. 	(Tehachapi 	Unified 	School
District 	(1993) 	PERB Decision No. 	1024.)
The 	Board agent 	also 	held 	that 	the 	conduct 	in question was
subject 	to deferral 	to binding arbitration. 	In its 	appeal, 	IUOE
questions 	the 	wisdom of 	deferring this 	charge 	to 	the 	same
grievance 	and arbitration process 	that 	is 	at 	the 	heart 	of 	the
alleged violations. 	This 	issue deserves 	serious review. 	If 	IUOE
had provided 	the 	necessary 	facts 	to 	establish the 	timeliness 	of
its 	charge, 	the Board could have undertaken a review of 	the
deferral 	issue the 	IUOE raises. 	However, 	such consideration must
wait 	for a 	future 	case.
33

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
PERD
February 2 8, 2 00 0
William A. 	Sokol
Van Bourg, 	Weinberg, 	Roger & Rosenfeld
180 	Grand Avenue, 	Suite 	1400
Oakland, 	CA 	94612
Re: 	International 	Union of Operating Engineers, 	Craft
Maintenance Division, 	Unit 	12 v. 	State of California
(Department 	of 	General 	Services)
Unfair Practice 	Charge No. 	SA-CE-1263-S
DISMISSAL 	LETTER
Dear Mr. 	Sokol:
The 	above-referenced 	unfair practice 	charge 	was 	filed with 	the
Public Employment Relations Board on February 8, 	2 0 00. 	The
charge 	alleges 	that 	the 	State 	of 	California 	(Department 	of
General 	Services) 	violated the Ralph C. 	Dills Act 	(Dills Act),
Government Code section 3519(a), 	(b) 	and 	(c), 	when it bypassed
the 	union 	to 	deal 	directly with an employee, 	Larry Atwood.
I 	indicated 	to you 	in my attached 	letter dated February 	11, 	2000,
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
February 22, 	2000, 	the charge would be dismissed.
I 	have 	not 	received 	either an amended charge or a 	request 	for
withdrawal. 	Therefore, 	I 	am dismissing 	the 	charge based on the
facts 	and reasons 	contained in my February 11, 	2000 	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 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
------~----

Dismissal 	Letter
SA-CE-1263-S
Page 2
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
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 	(2 0) 	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.

Dismissal 	Letter
SA-CE-1263-S
Page 3
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.)
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 	W.Wesley
Regional 	Attorney
Attachment
cc: 	Larry Menth
Sandra L. 	Lusich
Wendi L. 	Ross

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
PERD
February 11, 2 00 0
William A. 	Sokol
Van Bourg, 	Weinberg, 	Roger & Rosenfeld
180 	Grand Avenue, 	Suite 	1400
Oakland, 	CA 	94612
Re: 	International Union of Operating Engineers, 	Craft
Maintenance Division, 	Unit 	12 v. 	State of California
(Department 	of 	General 	Services)
Unfair 	Practice 	Charge No. 	SA-CE-1263-S
WARNING 	LETTER
Dear Mr. 	Sokol:
The 	above-referenced unfair 	practice 	charge 	was 	filed with 	the
Public Employment 	Relations 	Board on February 8, 	2000. 	The
charge 	alleges 	that 	the 	State 	of 	California 	(Department 	of
General 	Services) 	violated the Ralph C. 	Dills Act 	(Dills Act),
Government Code section 3519 (a), 	(b) 	and 	(c), 	when it bypassed
the union to deal 	directly with an employee, 	Larry Atwood.
The 	International 	Union of 	Operating Engineers 	(IUOE) 	alleges 	in
its 	charge 	that 	Mr. 	Atwood was 	involuntarily transferred as 	a
result 	of 	an adverse 	action. 	The Department 	eventually withdrew
the adverse action. 	Thereafter, 	Mr. 	Atwood sought 	to return to
his 	former position. 	The 	Department 	denied his 	request.
Mr. 	Atwood 	filed a grievance 	alleging that 	the 	refusal 	to 	return
him to 	his 	former position was 	a violation of 	the 	memorandum of
understanding 	(MOU) 	between 	IUOE and the 	State. 	Department
supervisors 	Tim Bow and Earl 	Howell 	told Mr. 	Atwood they would
give 	him a 	different 	position 	if 	he 	instructed 	IUOE 	to 	drop 	the
grievance.
IUOE and the 	State 	are parties 	to a MOU effective July 2, 	1999
through July 2, 	2001. 	The MOU contains 	a grievance procedure
which ends 	in binding arbitration. 	In addition, 	Section 20.4 	of
the MOU states:
The 	State 	shall 	not 	negotiate 	with or 	enter
into 	memorandum of 	understanding 	or 	adjust
grievances 	or grant 	rights 	or benefits 	not
covered 	in 	the Agreement 	to 	any 	employee
unless 	such action 	is 	with 	IUOE 	concurrence.
Based on 	the 	facts 	stated above, 	the 	charge 	fails 	to 	state 	a
prima 	facie 	case.

Warning 	Letter
SA-CE-1263-S
Page 2
Dills Act section 3514.5(a) 	states that PERB 	"shall not 	. 	. 	.
issue 	a 	complaint 	in 	respect 	of 	any charge 	based upon 	an 	alleged
unfair practice 	occurring more 	than 	six months 	prior to 	the
filing of 	the 	charge."
PERB 	has 	held 	that 	the 	six month 	statutory 	limitations 	period
begins 	to 	run when 	the 	charging party knew or 	should have 	known
of 	the 	conduct 	giving rise 	to 	the 	alleged unfair practice.
(Regents 	of 	the 	University of 	California 	(1983) 	PERB Decision
No. 	359-H.)
The 	charge 	fails 	to provide 	any 	facts 	which 	indicate 	when the
alleged unfair practices 	occurred. 	Since 	it 	cannot 	be 	determined
whether 	the 	unfair practices 	occurred within 	the 	statutory
limitations period, 	the 	charge must be dismissed.
Even assuming 	the 	charge 	was 	timely filed, 	the 	charge 	is 	subject
to deferral 	to 	the parties' 	grievance and arbitration procedure.
Section 3514.5(a) 	of the Dills Act 	states, 	in pertinent part,
that 	PERB 	shall 	not:
Issue 	a 	complaint 	against 	conduct 	also
prohibited by the 	provisions 	of 	the
[collective bargaining] 	agreement 	between the
parties 	until 	the 	grievance machinery of 	the
agreement, 	if 	it 	exists 	and covers 	the matter
at 	issue, 	has been exhausted, 	either by
settlement 	or binding 	arbitration.
In Lake Elsinore School District 	(1987) 	PERB Decision No. 	646,
PERB held 	that 	section 3541.5(a) 	of 	the 	Educational 	Employment
Relations Act, 	which contains 	language 	identical 	to
section 3514.5(a) 	of 	the Dills Act, 	established a jurisdictional
rule 	requiring 	that 	a 	charge 	be 	dismissed 	and 	deferred 	if:
(1) 	the grievance machinery of 	the agreement 	covers 	the matter at
issue and culminates 	in binding arbitration; 	and, 	(2) 	the conduct
complained of 	in 	the 	unfair practice 	charge 	is 	prohibited by 	the
provisions 	of 	the 	agreement 	between the parties. 	PERB Regulation
32620(b)(5) 	(Cal. 	Code of Regs., 	tit. 	8, 	sec. 	32620(b)(5)) 	also
requires 	the 	investigating Board agent 	to 	dismiss 	a 	charge 	where
the 	allegations 	are 	properly deferred 	to binding 	arbitration.
These 	standards 	are met with respect 	to this 	case. 	First, 	the
grievance 	machinery of 	the MOU covers 	the 	dispute 	raised by the
unfair practice 	charge 	and 	culminates 	in binding 	arbitration.
Second, 	the 	conduct 	complained of 	in this 	charge, 	that 	the
Department 	bypassed 	IUOE 	to 	negotiate 	directly with Mr. 	Atwood 	to
withdraw his 	grievance, 	is 	arguably prohibited by Section 20.4 	of
the MOU.

Warning 	Letter
SA-CE-1263-S
Page 3
Accordingly, 	if 	timely filed, 	this 	charge must be dismissed and
deferred 	to 	arbitration. 	Such dismissal 	is 	without 	prejudice 	to
the Charging Party's 	right, 	after arbitration, 	to 	seek a
repugnancy 	review by 	PERB 	of 	the 	arbitrator's 	decision under 	the
Dry Creek criteria. 	(See PERB Reg. 	32661 	[Cal. 	Code of Regs.,
tit. 	8, 	sec. 	32661]; 	Los Angeles Unified School District 	(1982)
PERB Decision No. 	218; 	Dry Creek Joint 	Elementary School 	District
(1980) 	PERB Order No. 	Ad-81a.)
If 	there 	are 	any 	factual 	inaccuracies 	in this 	letter or any
additional 	facts 	which would 	require 	a 	different 	conclusion 	than
the one 	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 	filed with PERB. 	If 	I 	do not 	receive 	an amended charge
or withdrawal 	from you before February 22, 	2 000, 	I 	shall dismiss
your charge without 	leave 	to amend. 	If you have 	any questions,
please call me at 	(916) 	327-8385.
Sincerely,
Robin W. Wesley
Regional Attorney
cc: 	Larry Menth