State of California (Departments of Personnel Administration, Banking, et al.) (PERB A300S)

STATE
	OF
	CALIFORNIA
DECISION
	OF
	THE
PUBLIC
	EMPLOYMENT
	RELATIONS
	BOARD
CALIFORNIA
	STATE
	EMPLOYEES
AS$0CIATION, 	SEIU
	LOCAL
	1000,
Charging
	Party,
V.
STATE
	OF
	CALIFORNIA
	(DEPARTMENTS
	OF
PERSONNEL
	ADMINISTRATION,
	BANKING,
TRANSPORTATION,
	WATER
	RESOURCES
AND
	BOARD
	OF
	EQUALIZATION),
Respondent.
)
)
)
)
)
)
)
)
)
)
)
)
)	
___________________
)
Case
	No.
	SA-CE-824-S
Administrative
	Appeal
PERE
	Order
	No.
	Ad-300-S
October
	27,
	1999
Appearances:	
Howard
	Schwartz,
	Attorney,
	for 	California 	State
Employees
	Association,
	SEIU
	Local
	1000;
	State
	of
	California
(Department
	of 	Personnel 	Administration)
	by 	Paul
	M.
	Starkey,
Labor
	Relations
	Counsel,
	for 	State
	of
	California
	(Departments
	of
Personnel 	Administration,
	Banking,
	Transportation,
	Water
Resources 	and 	Board
	of
	Equalization).
Before 	Caffrey,
	Chairman; 	Dyer
	and
	Amador, 	Members.
DECISION
AMADOR,
	Member:
	This 	case
	comes
	before 	the 	Public
Employment
	Relations
	Board
	(PERB
	or
	Board) 	on
	exceptions
	filed
	by
the
	State
	of
	California
	(Departments
	of 	Personnel 	Administration,
Banking,
	Transportation,
	Water 	Resources 	and 	Board
	of
Equalization) 	(State)
	to
	a
	Board
	agent's 	administrative
determination 	concerning 	compliance 	with
	a
	Board
	order.
In 	the 	administrative 	determination, 	the
	Board
	agent 	ordered
the 	State 	to
	comply
	with 	the
	Board
	order 	in 	State 	of 	California
(Departments 	of 	Personnel 	Administration. 	Banking.
Transportation, 	Water 	Resources 	and 	Board 	of 	Egualization
	(1998)
PERB
	Decision
	No. 	1279-S 	(DPA.
	et 	al.)).
	After 	reviewing 	the

entire
	record, 	including 	the
	Board
	agent's
	administrative
determination, 	the
	State;s
	appeal
	and
	request
	for
	a
	stay
	of
compliance,
	and
	the
	California 	State
	Employees
	Association,
	SEIU
Local
	1000's
	(CSEA)
	response
	thereto,
	we
	reverse
	the
administrative
	determination
	and
	find
	that
	the
	Stat.e 	has 	complied
with
	the
	Order
	in
	DPA,
	et 	al
..
BACKGROUND
In
	DPA,
	et
	al.,
	the
	Board 	found
	that
	the
	State violated
section
	3519(a) 	and
	(b)
	of
	the
	Ralph
	C.
	Dills
	Act
	(Dills
	Act)
1
when
	the 	State
	of
	California
	(Department
	of 	Transportation)
(Caltrans)
	adopted
	a
	policy
	that
	allows
	employees
	to
	use
	the
State's
	electronic
	mail 	system
	for
	minimal 	amounts
	of 	personal
communication
	so 	long
	as 	the 	subject 	of 	the
	communication
	does
not
	pertain
	to
	employee
	organization matters.
	It
	also
	found
	that
Caltrans, 	the
	State
	of
	California
	(Department
	of
	Banking)
(Banking) 	and
	the
	State
	of
	California
	(Department
	of
	Water
Resources)
	(DWR)
	violated
	the
	Dills
	Act 	by
	discriminatorily
The
	Dills
	Act
	is
	codified
	at
	Government 	Code
	section
	3512
et
	seq. 	Section
	3519
	states,
	in 	pertinent 	part:
1
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 	coerceemployees 	because 	of
	their
	exercise 	of
	rightsguaranteed by
	this
	chapter. 	For 	purposes 	of
this 	subdivision,
	"employee"
	includes 	an
applicant 	for
	employment
	or
	reemployment.
(b) 	Deny
	to
	employee
	organizations 	rightsguaranteed 	to
	them by
	this 	chapter.
2

applying
	other
	policies.
	The
	Board
	dismissed
	all
	other
allegations.
As
	a
	remedy,
	the
	Board
	ordered 	the
	State
	to:
A. 	CEASE
	AND
	DESIST
	FROM:
1.
	Discriminatorily prohibiting
	Unit
	1
members
	employed by
	Caltrans,
	Banking 	and
	DWR
from
	such
	incidental
	and 	minimal
	use 	of
	the
State's
	electronic
	mail 	system
	for
communication
	about
	employee
	organization
activities
	as 	those
	departments
	permit
	for
other
	non-business 	purposes.
B.
	TAKE
	THE 	FOLLOWING
	AFFIRMATIVE 	ACTIONS
DESIGNED
	TO
	EFFECTUATE
	THE
	POLICIES
	OF
THE
	DILLS	
ACT:
1.
	Within
	ten
	(10)
	days
	following 	the 	date
this
	Decision
	is
	no
	longer
	subject 	to
	appeal,
post
	at
	all
	work
	locations
	where
	notices 	to
persons
	employed
	in
	Unit
	1
	customarily
	are
posted, 	copies 	of 	the
	Notice
	attached 	as
	an
Appendix
	hereto.
	The
	Notice
	must 	be
	signed
by
	an
	authorized 	agent 	of 	the
	State,indicating
	the
	State 	will
	comply
	with 	the
terms
	of
	this
	Order.
	Such
	posting
	shall
	be
maintained
	for
	a
	period
	of
	thirty
	(30)
consecutive
	workdays. 	Reasonable
	steps
	shall
be
	taken
	to
	ensure
	that 	this
	Notice
	is
	notreduced
	in 	size, 	altered,
	defaced
	or
	coveredby 	any
	other material.
2. 	Written
	notification
	of
	the 	actions
taken
	to
	comply
	with
	this
	Order
	shall
	be
	made
to 	the
	Sacramento 	Regional
	Director
	of 	the
Public
	Employment
	Relations
	Board
	in
accordance 	with 	the
	director's 	instructions.
On
	or 	about 	October 	27, 	1998,
	the
	State
	informed
	the
regional 	director 	that 	the 	three 	agencies
	found
	to
	have
	violated
the
	Dills
	Act
	in
	DPA,
	et 	al.
	(Caltrans,
	Banking and
	DWR)
	had
initiated
	the 	required posting 	of 	the 	notice.
	On
	or 	about
February 	3, 	1999,
	the 	State 	reported
	by
	letter
	to
	PERB's
	regional
director 	that 	those 	three 	agencies 	had
	satisfied 	the 	posting
3

requirements 	of
	the 	order.
	On
	or
	about 	February
	26, 	1999,
	the
regional
	director
	issued
	a
	letter
	to
	the
	parties
	indicating 	that
the
	State
	had 	complied
	with
	the
	terms
	of
	the 	order,
	and
	that
	the
matter
	would
	be
	considered 	closed 	unless
	CSEA
	objected within
	10
days.
	CSEA
	did
	object,
	and
	the
	State
	responded.
On
	or
	about 	June
	30, 	1999,
	the 	regional
	director
	issued
	an
administrative
	determination
	in
	which 	he 	found
	that
	compliance
had
	not 	occurred
	because
	statewide 	posting	
was	
required.
STATE'S
	APPEAL
	AND
	CSEA'S
	RESPONSE
The
	State
	contends
	that
	the
	remedial
	posting
	should 	be
limited 	to
	the
	three
	specific
	agencies
	that
	were 	found
	to
	have
violated
	the
	Dills
	Act
	(i.e.,
	Caltrans,
	Banking 	and
	DWR).
	CSEA
responded
	by
	supporting 	the
	Board
	agent's
	determination
	that
statewide 	posting
	is
	required.
DISCUSSION
In 	the 	underlying 	decision,
	DPA.
	et
	al.,
	the
	Board 	found
that 	three 	individual
	departments 	(Caltrans,
	Banking, 	and
	DWR)
violated
	the
	Dills
	Act
	in 	specified
	ways. 	The
	sole 	issue
	is
whether
	statewide 	posting
	is
	required, 	or
	whether
	posting
	in 	just
2
The 	Board
	specifically
	found
	that:
	(1)
	Caltrans
	violatedthe
	Dills
	Act
	when
	it
	adopted
	a
	policy 	that
	allows
	employees
	to
use 	the
	State's 	electronic
	mail 	system
	for
	minimal 	amounts
	of
personal
	communication
	but 	prohibits
	such use
	when
	the 	subject
	of
the
	communication
	pertains 	to
	employee
	organization matters;
	and(2)
	Caltrans,
	Banking 	and
	DWR
	violated 	the 	Dills
	Act 	by
discriminatorily 	applying 	other neutral 	policies 	in
	a 	way
	thatprohibits
	communication 	about 	employee
	organization businesswhile 	permitting 	other 	personal
	corrnnunication. 	These
discriminatory 	actions 	interfered with 	the 	rights 	of 	employees
	to
participate 	in 	the 	activities
	of 	employee
	organizations 	and 	the
right 	of
	CSEA
	to
	communicate 	with
	its
	members.
2
4

those
	three
	departments
	is
	sufficient.
When
	the
	Board
	orders 	posting
	as
	a
	remedy,
	it
	typically
orders
	that
	a
	notice
	be
	posted
	for
	a
	certain
	period
	of
	time
	in
appropriate 	locations
	at
	the
	premises
	of 	the
	employer
	to
	notify
employees
	of 	the
	conduct
	that
	was
	found
	to
	be
	unlawful. 	(Zerger,
California
	Public
	Sector
	Labor
	Relations
	(1999)
	Chapter
	42,
	sec.
42.21[2]
[a],
	p. 	42-7,
	fn.
	5,
	citing
	Jefferson
	School
	District
(1980)
	PERE
	Decision
	No.
	133;
	Pittsburg
	Unified
	School
	District
(1984)
	PERE
	Decision
	No.
	318a.)
	The
	purpose 	of
	such
	a
	posting
	is
to
	ensure
	that
	all
	employees
	affected
	by
	a
	decision 	are
	notified
of
	their
	rights
	under
	the
	statute
	and
	of
	PERB's
	findings
regarding
	violations
	of 	those
	rights.
	(Placerville
	Union
	School
District
	(1978)
	PERE
	Decision
	No.
	69.)
	Posting
	also 	serves
	to
notify
	the 	affected
	employees
	that
	the 	controversy
	has 	been
resolved
	and 	announces
	the 	employer's 	readiness
	to
	comply
	with
the 	ordered
	remedy. 	(Davis
	Unified
	School
	District. 	et 	al.
(1980)
	PERE
	Decision
	No.
	116.)
Systemwide
	posting
	has 	been
	ordered
	on
	occasion
	even 	though
the
	violation
	occurred
	at
	a
	single 	worksite.
	However,
	this
	type
of
	remedy
	typically
	occurs
	in
	a
	case
	which
	involves 	the
interpretation
	of 	contract
	language
	that 	applies 	to
	an
	entire
unit 	of 	represented
	employees. 	(See,
	e.g.,
	State
	of
	California
(Department 	of 	Mental 	Health)
	(1990)
	PERB
	Decision
	No. 	84O-S,
p. 	5, 	fn. 	3,
	in
	which
	the
	Board
	ordered 	statewide 	posting 	because
the 	violation 	to
	be 	remedied 	concerned 	contract 	language
applicable 	to 	the 	entire 	unit,
	whose 	members
	are
	employed 	on 	a
5

systemwide
	basis;
	The
	Regents
	of
	the 	University
	of
	California
(1990)
	PERE
	Decision
	No.
	826-H,
	p.
	13,
	in
	which
	the
	Board
	ordered
systemwide
	posting 	despite
	the
	fact 	that
	the
	violation
	occurred
on
	a
	single
	campus
	because
	the
	violation
	to
	be 	remedied
	by
	the
posting 	order
	concerned
	contract
	language
	applicable 	to 	the
entire 	unit,
	whose
	members
	were
	_employed
	at
	all
	University
campuses;
	see
	also,
	Trustees
	of
	the
	California 	State
	University
(1988)
	PERB
	Order
	No.
	Ad-174-H,
	p.
	2.)
The
	cited
	cases
	are
	readily 	distinguishable
	from
	the 	case
	at
bar. 	In
	those
	cases, 	the
	Board
	sought
	to
	remedy
	a
	violation
which
	affected
	an
	entire
	bargaining
	unit.
	Here, 	by
	contrast,
	the
issue
	was
	the
	legality
	of
	three
	particular
	agencies'
	policies
and/or 	the 	application
	of 	those
	policies 	to
	employees
	of 	those
agencies.
	The
	charge
	does
	not 	idendify 	or 	challenge
	a
	statewide
policy.
	It
	does
	not 	claim
	that
	the 	agencies'
	policies
	had
	a
unitwide
	effect.
	It
	does
	not 	claim
	that
	any
	other 	agency's
policy 	violated
	the
	Dills
	Act,
	beyond
	the
	named
	agencies.
3
Accordingly,
	the
	remedy
	applies
	only
	to 	the 	three
	agencies
	whose
policies
	and
	application
	of 	those
	policies
	were
	at
	issue 	in 	the
case 	and
	were 	found
	to
	be
	unlawful.
4
We
	note
	that 	the 	State
	of
	California
	(Board
	of
Equalization)
	was
	originally
	named
	as
	a
	respondent 	and
	the
	Board
dismissed 	allegations 	related 	to 	that
	agency.
	Hence,
	it
	would 	be
inappropriate 	to 	order 	posting
	at
	the
	Board
	of 	Equalization.
3
The 	argument 	has 	been
	made
	that
	wider 	posting
	is 	desirableto 	convey 	the
	results
	of
	a 	PERB
	decision 	to
	a
	broader 	audience
for 	purposes 	of 	instruction
	and 	guidance. 	Although
	we
	conclude
that 	the 	facts 	here
	do
	not
	justify 	statewide 	publication 	for 	thatpurpose,
	we
	note 	that 	the 	State 	of 	California
	(Department 	of
Personnel 	Administration) 	voluntarily 	informed
	all 	State 	agencies
4
6

Posting
	only
	at
	those
	three
	agencies 	serves 	the
	traditional
purposes
	for
	posting;
	i.e.,
	it
	notifies
	employees
	of
	the
	unlawful
conduct;
	it
	publicizes
	PERB's
	ruling
	on
	the 	controversy
	to
employees
	who
	are 	affected;
	and
	it
	notifies
	those
	employees
	that
the
	employer
	is
	ready
	to
	comply
	with 	the 	ordered
	remedy.
Perhaps
	most
	importantly,
	in
	finding
	a
	violation 	in
	DPA.
	et
al.,
	it
	was
	the 	Board's
	intent 	that
	posting
	occur 	only
	at
Caltrans,
	Banking and
	DWR,
	not
	statewide.
	That
	posting 	occurred,
and
	the
	Board
	hereby
	finds
	that
	compliance 	has 	been
	achieved.
ORDER
The
	administrative
	determination
	is
	hereby
	REVERSED
	and
	the
Public
	Employment
	Relations
	Board
	ORDERS
	that
	the
	State
	of
California
	(Departments
	of
	Transportation,
	Banking, 	and
	Water
Resources) 	has 	complied
	with 	the
	Order
	in 	State
	of
	California
(Departments
	of 	Personnel 	Administration,
	Banking.
Transportation.
	Water Resources
	and 	Board
	of 	Equalization)
	(1998)
PERE
	Decision
	No.
	1279-S.
Chairman
	Caffrey
	and
	Member
	Dyer
	joined 	in 	this
	Decision.
of 	the 	Board's 	decision 	in
	DPA,
	et 	al. 	in 	the
	form 	of 	an
informational
	memo.
7