State of California (Department of General Services) (PERB 1395S)

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-1264-S
PERB 	Decision No. 	1395-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) 	substantially reduced
Larry Atwood's 	annual 	performance 	evaluation 	results 	because 	he
filed a grievance 	against 	the 	State. 	This 	conduct 	is 	alleged to

violate 	section 3519(a) 	and 	(b) 	of 	the Ralph C. 	Dills Act 	(Dills
Act).1
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-1264-S 	is
hereby DISMISSED WITHOUT 	LEAVE 	TO AMEND.
Member Dyer 	joined 	in 	this 	Decision.
Member Baker's 	concurrence 	begins 	on page 	3.
•"•The 	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.
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 that 	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
February 28, 2 0 00
William A. 	Sokol
Van Bourg, 	Weinberg, 	Roger & Rosenfeld
18 0 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-1264-S
DISMISSAL 	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) 	and 	(b), 	when it discriminated
against 	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 	(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

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.)
Dismissal 	Letter
SA-CE-1264-S
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-1264-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
Wendi L. 	Ross

STATE OF CALIFORNIA 	f 	GRAY DAVIS, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
1031 18th Street, Room 102
Sacramento, CA 95814-4174
(916) 322-3198
PERS
February 11, 2 0 00
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-1264-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) 	and 	(b), 	when it discriminated
against 	an employee, 	Larry Atwood.
The 	International 	Union of 	Operating Engineers 	(IUOE) 	alleges 	in
its 	charge 	that 	the 	Department 	retaliated against 	Mr. 	Atwood 	"by
substantially 	reducing 	his 	annual 	performance 	evaluation 	results"
because 	he 	filed 	a 	grievance 	concerning 	an 	unrelated matter.
IUOE 	and 	the 	State 	are 	parties 	to 	a memorandum of 	understanding
(MOU) 	effective July 2, 	1999 	through July 2, 	2001. 	The MOU
contains 	a 	grievance 	procedure 	which ends 	in binding 	arbitration.
In addition, 	Section 20.3 	of 	the MOU states:.
The 	State 	and 	IUOE 	shall 	be 	prohibited 	from
imposing 	or 	threatening 	to 	impose 	reprisals
by 	discriminating 	or 	threatening 	to
discriminate against 	employees, 	or other wise
interfering with, 	restraining, 	or coercing
employees 	because 	of 	the 	exercise 	of 	their
rights 	under 	the 	Dills Act 	or 	any 	right 	given
by 	this Agreement.
Based on the 	facts 	stated above, 	the 	charge 	fails 	to 	state 	a
prima 	facie 	case.
PERB Regulation 32615 (a) (5) 	requires that 	an unfair practice
charge 	include 	a 	"clear and concise 	statement 	of 	the 	facts 	and
conduct 	alleged 	to 	constitute 	an unfair practice." 	A charging
party must 	alleged the 	"who, 	what, 	when, 	where and how" 	of an

Warning 	Letter
SA-CE-1264-S
Page 2
unfair practice. 	(State 	of 	California 	(Department 	of 	Food and
Agriculture) (1994) 	PERB 	Decision No. 	1071-S, 	citing United
Teachers-Los Angeles 	(Ragsdale) 	(1992) 	PERB Decision No. 	944.)
Mere 	legal 	conclusions 	are 	not 	sufficient 	to 	state 	a prima 	facie
case. 	(Ibid.; 	Charter Oak Unified School District 	(1991) 	PERB
Decision No. 	873.)
Furthermore, 	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.

Warning 	Letter
SA-CE-1264-S
Page 3
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 	discriminated against 	Mr. 	Atwood because 	he 	filed a
grievance, 	is 	arguably prohibited by Section 20.3 	of 	the MOU.
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 0 00, 	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