Professional Engineers in CA Government (Professional Engineers in California Government) (PERB 0118S)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
PROFESSIONAL ENGINEERS IN CALIFORNIA
GOVERNMENT ( PECG) , 	Case No. S-CE-7-S
(78-79)
Charging Party,
v . 	PERB Decision No. 118-S
STATE OF CALIFORNIA,
March 19, 1980
Respondent.
Bruce J. Blanning, for Professional Engineers in
California Government; and Barbara Stuart, Assistant Chief
Counsel for Governor's Office of Employee Relations, for State
of California.
Before: Gluck, Chairperson; Gonzales and Moore, Members.
DECISION
The Professional Engineers in California Government
(hereafter PECG) appeal from a hearing officer's dismissal of
an unfair practice charge.
The charge alleges that the Governor's unilateral action in
reducing salary increases for members of PECG before he signed
the 1978-79 budget bill violat 	uty to meet with the
organization as required by sections 3515.5
STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
PROFESSIONAL 	ENGINEERS 	IN 	CALIFORNIA
GOVERNMENT 	(PECG),
Charging 	Party,
v.
STATE 	OF 	CALIFORNIA,
Respondent.
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Case 	No. 	S-CE-7-S
(78-79)
PERB 	Decision 	No. 	118-S
March 	19, 	1980
1Appearances :	Ap 	Bruce 	J. 	Blanning, 	for 	Professional 	Engineers 	in
Ca 	ifornia 	Government; 	and 	Barbara 	Stuart, 	Assistant 	Chief
Counsel 	for 	Governor's 	Office 	of 	Employee 	Relations, 	for 	State
of 	California.
Before: 	Gluck, 	Chairperson; 	Gonzales 	and 	Moore, 	Members.
DECISION
The 	Professional 	Engineers 	in 	California 	Government
(hereafter 	PECG) 	appeal 	from 	a 	hearing 	officer's 	dismissal 	of
an 	unfair 	practice 	charge.
The 	charge 	alleges 	that 	the 	Governor's 	unilateral 	action 	in
reducing 	salary 	increases 	for 	members 	of 	PECG 	before 	he 	signed
the 	1978-79 	budget 	bill 	v	ed his d	lated 	his 	duty 	to 	meet 	with 	the
organization 	as 	required 	by 	sections 	35	and 3522.4 of the	.5 	and 	3522.4 	of
earances:

State Employer-Employee Relations Act (hereafter SEERA or the
Act) _ and Section 3528 of the George Brown Act. 2 PECG
The SEERA is codified at Government Code section 3512,
et seq. All further section references are to the Government
Code unless otherwise indicated.
Sections 3515.5 and 3522.4 of the SEERA read, respectively,
as follows :
3515.5. Employee organizations shall have
the right to represent their members in
their employment relations with the state,
except that once an employee organization is
recognized as the exclusive representative
of an appropriate unit, the recognized
employee organization is the only
organization that may represent that unit in
employment relations with the state.
Employee organizations may establish
reasonable restrictions regarding who may
join and may make reasonable provisions for
the dismissal of individuals from
membership. Nothing in this section shall
prohibit any employee from appearing in his
own behalf in his employment relations with
the state.
3522.4. Employee organizations shall have
the right to represent their supervisory
employee members in their employment
relations, including grievances, with the
employer . 	Employee organizations may
establish reasonable restrictions regarding
who may join and may make reasonable
provisions for the dismissal of employees
from membership. Nothing in this section
shall prohibit any employee from appearing
on his or her own behalf or through his or
her chosen representative in his or her
employment relations and grievances with the
public employer.
2The George Brown Act is codified at Government Code
section 3525 et seq. At the time this charge was filed
2
State 	Employer-Employee 	Relations 	Act 	(hereafter 	SEERA or 	the
Act) 1 	and 	Section 	3528 	of 	the 	George 	Brown Act.2 	PECG
1The 	SEERA 	is 	codified 	at 	Government 	Code 	section 	3512,
et 	seq. 	All 	further 	section 	references 	are 	to 	the 	Government
Code 	unless 	otherwise 	indicated.
Sections 	3515.5 	and 	3522.4 	of 	the 	SEERA 	read, 	respectively,
as 	follows:
3515.5. 	Employee 	organizations 	shall 	have
the 	right 	to 	represent 	their 	members 	in
their 	employment 	relations 	with 	the 	state,
except 	that 	once 	an 	employee 	organization 	is
recognized 	as 	the 	exclusive 	representative
of 	an 	appropriate 	unit, 	the 	recognized
employee 	organization 	is 	the 	only
organization 	that 	may 	represent 	that 	unit 	in
employment 	relations 	with 	the 	state.
Employee 	organizations 	may 	establish
reasonable 	restrictions 	regarding 	who 	may
join 	and 	may 	make 	reasonable 	provisions 	for
the 	dismissal 	of 	individuals 	from
membership. 	Nothing 	in 	this 	section 	shall
prohibit 	any 	employee 	from 	appearing 	in 	his
own 	behalf 	in 	his 	employment 	relations 	with
the 	state.
3522.4. 	Employee 	organizations 	shall 	have
the 	right 	to 	represent 	their 	supervisory
employee 	members 	in 	their 	employment
relations, 	including 	grievances, 	with 	the
employer. 	Employee 	organizations 	may
establish 	reasonable 	restrictions 	regarding
who 	may 	join 	and 	may 	make 	reasonable
provisions 	for 	the 	dismissal 	of 	employees
from 	membership. 	Nothing 	in 	this 	section
shall 	prohibit 	any 	employee 	from 	appearing
on 	his 	or 	her 	own 	behalf 	or 	through 	his 	or
her 	chosen 	representative 	in 	his 	or 	her
employment 	relations 	and 	grievances 	with 	the
public 	employer.
2The 	George 	Brown 	Act 	is 	codified 	at
section 	3525 	et 	seq. 	At 	t 	is rnment
was 	fi
2

alleges that its right to represent its rank and file, 3
supervisory and managerial members has been violated.
The hearing officer held that the SEERA imposed no
obligation on the state to meet with nonexclusive
representatives of state employees and that PECG had not,
therefore, been denied any right to represent its rank and file
members in their employment relations with the state.
The hearing officer further held that the Public Employment
Relations Board (hereafter PERB or Board) lacked jurisdiction
to resolve PECG's claim regarding supervisors and managers
through the unfair practice provisions of SEERA.
For the reasons stated below, we disagree with the hearing
officer's interpretation of the Governor's obligation to meet
managerial and confidential employees were covered by that act
but were removed from the coverage thereof on July 1, 1979.
Section 3528 of that act reads as follows:
Employee organizations shall have the right
to represent their members in their
employment relations, including grievances,
with the state. Employee organizations may
establish reasonable restrictions regarding
who may join and may make reasonable
provisions for the dismissal of individuals
from membership. Nothing in this section
shall prohibit any employee from appearing
in his own behalf or through his chosen
representative in his employment relations
and grievances with the state.
3The term "rank and file" as used in this decision
includes those persons included within the definition of "state
employee" contained in Section 3513 (c) .
3
alleges 	that 	its 	right 	to 	represent 	its 	rank 	and 	file,3
supervisory 	and 	managerial 	members 	has 	been 	violated.
The 	hearing 	officer 	held 	that 	the 	SEERA 	imposed 	no
obligation 	on 	the 	state 	to 	meet 	with 	nonexclusive
representatives 	of 	state 	employees 	and 	that 	PECG 	had 	not,
therefore, 	been 	denied 	any 	right 	to 	represent 	its 	rank 	and 	file
members 	in 	their 	employment 	relations 	with 	the 	state.
The 	hearing 	officer 	further 	held 	that 	the 	Public 	Employment
Relations 	Board 	{hereafter 	PERB 	or 	Board) 	lacked 	jurisdiction
to 	resolve 	PECG's 	claim 	regarding 	supervisors 	and 	managers
through 	the 	unfair 	practice 	provisions 	of 	SEERA.
For 	the 	reasons 	stated 	below, 	we 	disagree 	with 	the 	hearing
officer's 	interpretation 	of 	the 	Governor's 	obligation 	to 	meet
managerial 	and 	confidential 	employees 	were 	covered 	by 	that 	act
but 	were 	removed 	from 	the 	coverage 	thereof 	on 	July 	1, 	1979.
Section 	3528 	of 	that 	act 	reads 	as 	follows:
Employee 	organizations 	shall 	have 	the 	right
to 	represent 	their 	members 	in 	their
employment 	relations, 	including 	grievances,
with 	the 	state. 	Employee 	organizations 	may
establish 	reasonable 	restrictions 	regarding
who 	may 	join 	and 	may 	make 	reasonable
provisions 	for 	the 	dismissal 	of 	individuals
from 	membership. 	Nothing 	in 	this 	section
shall 	prohibit 	any 	employee 	from 	appearing
in 	his 	own 	behalf 	or 	through 	his 	chosen
representative 	in 	his 	employment 	relations
and 	grievances 	with 	the 	state.
3The 	term 	"rank 	and 	file" 	as 	used 	in 	this 	is
includes 	those 	persons 	included 	within 	the 	definition 	of 	"state
employee" 	contained 	in 	Section 	3513(c).
3

with nonexclusive representatives of rank and file employees
under SEERA. However, we dismiss this element of the charge
because the actions of the state employer under the
circumstances in this case were reasonable. As will be
discussed subsequently, we affirm the hearing officer's
decision rejecting PECG's claim that it has been denied its
right to represent its supervisory members. We also agree that
PERB has no jurisdiction over claims that the rights of
managerial employees have been violated.
Facts
Prior to July 1, 1978, employer-employee relations between
the state and its employees were governed by the provisions of
the George Brown Act. Effective July 1, 1978, the vast
majority of state civil service employees, with certain
exceptions including managerial and confidential employees,
(see footnote two, supra) were no longer included within the
ambit of the George Brown Act and were instead covered by SEERA.
Some of the events in this case took place prior to
July 1, 1978, at which time rank and file and supervisory
employees were covered by the George Brown Act and some events
took place after that date when those employees were covered by
the SEERA.
with 	nonexclusive
	representatives
	of
	rank
	and
	file
	employees
under
	SEERA.
	However,
	we
	dismiss
	this
	element
	of
	the
	charge
because
	the
	actions 	of
	the
	state
	employer 	under
	the
circumstances 	in
	this
	case
	were
	reasonable.
	As
	will
	be
discussed 	subsequently,
	we
	affirm
	the 	hearing
	officer's
decision
	rejecting
	PECG's
	claim
	that
	it
	has 	been
	denied
	its
right
	to 	represent
	its
	supervisory
	members.
	We
	also
	agree
	that
PERB
	has
	no
	jurisdiction
	over
	claims
	that
	the
	rights
	of
managerial
	employees 	have 	been
	violated.
Facts
Prior 	to 	July
	1,
	1978, 	employer-employee
	relations
	between
the
	state
	and
	its
	employees 	were
	governed
	by
	the
	provisions 	of
the
	George
	Brown
	Act.
	Effective 	July 	1,
	1978,
	the
	vast
majority
	of
	state 	civil
	service
	employees,
	with
	certain
exceptions 	including 	managerial
	and
	confidential
	employees,
(see
	footnote
	two,
	suera)
	were
	no
	longer 	included 	within 	the
ambit
	of 	the
	George 	Brown
	Act
	and 	were
	instead
	covered
	by
	SEERA.
Some
	of 	the 	events 	in
	this
	case
	took
	place
	prior 	to
July 	1,
	1978,
	at
	which 	time 	rank
	and
	file
	and
	supervisory
employees 	were
	covered
	by
	the
	George 	Brown Act 	and 	some
	events
took
	place
	after 	that
	date
	when 	employees 	were
	covered 	by
the
	SEERA.
4

The following facts asserted by the charging party will be
assumed to be true for purposes of this appeal. During
February, 1978, the Governor's Office of Employee Relations
proposed that the salary of state employees be increased by an
average of five percent. PECG responded with a counterproposal
during April, 1978, and requested that the parties begin the
meet and confer process. A meeting was held between the
parties on May 10, 1978, and the proposal and counterproposal
were discussed. A representative of PECG subsequently
requested on June 14, 15, 16, 19, 21, and July 5 the convening
of additional sessions, but none were held. On July 5, 1978
(four days after the effective date of SEERA) , the State
Legislature reduced the amount contained in the budget bill for
salary increases for state employees from 5 percent to
2 1/2 percent. The Governor signed the budget bill on July 6
but before doing so he eliminated the 2 1/2 percent salary
increase without notifying or meeting and discussing the matter
with PECG. These actions form the basis for the charge in this
case .
4San Juan Unified School District, (3/10/77) EERB
Decision No. 12.
The
	following
	facts
	asserted
	by
	the 	charging
	party
	will
	be
assumed
	to
	be
	true
	for 	purposes
	of
	this
	appeal.
4	
During
February,
	1978,
	the 	Governor's
	Office 	of
	Employee
	Relations
proposed
	that
	the
	salary
	of
	state
	employees
	be
	increased
	by
	an
average
	of
	five 	percent.
	PECG
	responded
	with
	a
	counterproposal
during
	April,
	1978,
	and
	requested
	that
	the
	parties
	begin
	the
meet
	and
	confer
	process.
	A
meeting
	was
	held
	between
	the
parties
	on
	May
	10,
	1978,
	and
	the 	proposal
	and
	counterproposal
were
	discussed.
	A
representative 	of
	PECG
	subsequently
requested
	on
	June
	14, 	15, 	16, 	19,
	21,
	and
	July
	5
	the
	convening
of
	additional 	sessions,
	but
	none 	were
	held.
	On
	July 	5,
	1978
(four
	days
	after
	the
	effective
	date 	of
	SEERA),
	the
	State
Legislature
	reduced
	the
	amount
	contained 	in 	the
	budget
	bill
	for
salary
	increases
	for
	state
	employees
	from 	5	
percent 	to
2
	1/2
	percent.
	The
	Governor
	signed 	the
	budget
	bill
	on
	July
	6
but 	before
	doing 	so
	he
	eliminated 	the
	2
	1/2
	percent 	salary
increase
	without
	notifying 	or
	meeting
	and
	discussing 	the 	matter
with
	PECG.
	These
	actions
	form
	the 	basis 	for 	the 	charge
	in
	this
case.
4san 	Juan 	Unified 	School
	District,
	(3/10/77)
	EERB
Decision
	No.
	12.
5

DISCUSSION
Rank and File Employees
The authority for filing an unfair practice charge is found
in section 3514.5." As grounds for its charge PECG alleges a
violation of Section 3519 (b) . In turn, the right PECG
claims was denied it is the right provided in section 3515.5,
quoted above, to nonexclusive employee organizations "to
represent their members in their employment relations with the
state" until such time as an exclusive representative is
recognized.
One of the issues to be resolved in this case concerns the
extent of a nonexclusive representative's right to represent
section 3514.5 reads in pertinent part as follows:
The initial determination as to whether the
charges of unfair practices are justified,
and, if so, what remedy is necessary to
effectuate the purposes of this chapter,
shall be a matter within the exclusive
jurisdiction of the board. Procedures for
investigating, hearing, and deciding these
cases shall be devised and promulgated by
the board and shall include all of the
following :
(a) Any employee, employee organization, or
employer shall have the right to file an
unfair practice charge. .
6Section 3519 reads in pertinent part as follows:
It shall be unlawful for the state to:
(b) Deny to employee organizations rights
guaranteed to them by this chapter.
DISCUSSION
Rank
	and
	File
	Employees
The
	authority
	for
	filing
	an
	unfair
	practice
	charge
	is
	found
in 	section
	3514.5.
5	
As
	grounds
	for
	its
	charge
	PECG
	alleges
	a
violation
	of 	Section
	3519{b)
.6	
In
	turn,
	the
	right
	PECG
claims
	was
	denied
	it
	is
	the
	right
	provided
	in
	section
	3515.5,
quoted 	above,
	to
	nonexclusive
	employee
	organizations 	"to
represent
	their
	members
	in
	their
	employment
	relations
	with
	the
state"
	until
	such 	time
	as
	an
	exclusive
	representative
	is
recognized.
One
	of 	the
	issues
	to
	be
	resolved 	in
	this
	case 	concerns
	the
extent
	of
	a
	nonexclusive
	representative's 	right 	to 	represent
5
5section
	3514.5
	reads 	in
	pertinent 	part
	as 	follows:
The
	initial
	determination
	as
	to
	whether
	the
charges 	of 	unfair 	practices
	are
	justified,
and,
	if
	so,
	what 	remedy
	is
	necessary 	to
effectuate
	the 	purposes
	of
	this
	chapter,
shall
	be 	a
	matter 	within 	the 	exclusive
jurisdiction
	of
	the 	board. 	Procedures 	for
investigating,
	hearing,
	and
	deciding 	thesecases
	shall
	be
	devised
	and
	promulgated
	by
the 	board
	and
	shall
	include
	all
	of 	the
following:
(a) 	Any
	employee, 	employee
	organization,
	oremployer
	shall
	have
	the
	right 	to
	file
	an
unfair 	practice
	charge
...
6section
	3519
	reads
	pertinent 	part	
as	
follows:
It
	sha 	be 	unlawful 	for
	state 	to:
(b) 	Deny
	to
	employee
	organizations 	rightsguaranteed 	to
	them 	by
	this 	chapter.
6

its members in their "employment relations" and, specifically,
whether wages are included within the scope of that term.
Concomitant issues involve the extent of the Governor's
obligation to meet and discuss that topic with nonexclusive
representatives and whether the Governor met that obligation or
was excused from doing so under the cirumstances of this case.
The term "employment relations" is not statutorily defined
and PERB has not fully resolved the scope of the term.
In San Diegueto Union High School District (9/2/77) EERB
Decision No. 22, a majority of the Board as then constituted
held that the representation rights of a nonexclusive
representative under section 3543.1(a) of the Educational
Employment Relations Act (hereafter EERA) , which reads
substantially the same as section 3515.5, supra, of the SEERA,
did not include the right to "meet and consult" with the
employer. The hearing officer here relied in part on the
holding in San Diegueto in reaching the proposed decision in
this case. Respondent similarly argues that the Board's
rationale in San Diegueto is applicable to the facts in this
case. We disagree.
7The Educational Employment Relations Act is codified at
Government Code section 3540 et seq.
we choose, however, not to expressly overrule that
portion of the holding in San Diegueto in this case. 	That case
was decided under the EERA and we defer to another day a
reconsideration of that decision based on a case arising under
that Act.
7
its
	members
	in
	their
	"employment
	relations"
	and,
	specifically,
whether
	wages
	are
	included
	within 	the
	scope
	of
	that
	term.
Concomitant
	issues
	involve
	the
	extent 	of
	the
	Governor's
obligation
	to
	meet
	and
	discuss
	that
	topic
	with 	nonexclusive
representatives
	and
	whether
	the
	Governor
	met
	that 	obligation
	or
was
	excused
	from
	doing 	so
	under
	the 	cirumstances
	of
	this
	case.
The
	term
	"employment
	relations"
	is
	not
	statutorily
	defined
and
	PERB
	has
	not
	fully
	resolved 	the
	scope
	of
	the
	term.
In
	San
	Dieguito
	Union 	High
	School
	District
	(9/2/77)
	EERB
Decision
	No.
	22,
	a
	majority of 	the
	Board
	as 	then
	constituted
held
	that
	the
	representation
	rights
	of
	a
	nonexclusive
representative
	under
	section
	3543.l(a) 	of 	the 	Educational
Employment
	Relations
	Act
7	
(hereafter
	EERA),
	which
	reads
substantially
	the
	same
	as
	section
	3515.5,
	?upra, 	of 	the
	SEERA,
did 	not 	include 	the
	right
	to
	"meet
	and
	consult"
	with 	the
employer.
	The
	hearing
	officer
	here
	relied
	in
	part
	on
	the
holding
	in
	San
	Dieguito 	in 	reaching 	the
	proposed
	decision 	in
this
	case.
	Respondent
	similarly
	argues
	that
	the 	Board's
rationale
	in
	San
	Dieguito
	is
	applicable 	to 	the
	facts
	in
	this
case.
	we
	disagree.
8
7The
	Educational
	Employment
	Relations
	Act
	is
	codified
	at
Government 	Code
	section
	3540
	et
	seq.
8we
	choose, 	however,
	not 	to 	express 	overrule 	thattion 	of 	the 	holding 	in
	San
	Dieguito 	in
	this 	case.
	That
	case
was
	decided 	under 	the
	EERA
	and
	we
	defer 	to 	another 	day 	a
reconsideration 	of 	that 	decision 	based 	on 	a
	case 	arising
	under
that 	Act.
7

The SEERA granted significant new collective negotiations
rights to state employees. If we were to adopt respondent's
argument that nonexclusive representatives have no right to
meet and discuss wages with the state employer, employees would
be left with fewer rights than they had before SEERA. It would
be anomalous for the Legislature in enacting a new law which
generally expands the rights of employees, to strip employees
in units with no exclusive representative of any voice in a
matter as basic as wages.
Two statutory provisions strongly militate against such an
interpretation. First, there is no requirement under the SEERA
that employees select an exclusive representative.
(Sec. 3515.) Second, nonexclusive representatives have the
right to represent their members in their employment relations
with the state until an exclusive representative is
recognized. (Sec. 3515.5, supra. ) The Board finds that the
thrust of these two sections is to protect the right of
employees to be represented by a nonexclusive representative
when an exclusive representative has not been selected.
Every agreement entered into as a result of the negotiating
process includes many noneconomic items. Fundamental to all
agreements, however, are economic items such as wages and
fringe benefits. The foremost interest of employees is to
achieve the payment of an adequate wage. 	Therefore, without
deciding the full scope of the right of representation of
The
	SEERA
	granted
	significant
	new
	collective
	negotiations
rights
	to
	state
	employees.
	If
	we
	were
	to
	adopt
	respondent's
argument
	that
	nonexclusive
	representatives
	have
	no
	right
	to
meet
	and
	discuss
	wages
	with
	the
	state
	employer,
	employees
	would
be
	left
	with
	fewer
	rights
	than 	they
	had
	before
	SEERA.
	It
	would
be 	anomalous
	for 	the
	Legislature
	in 	enacting
	a 	new
	law
	which
generally
	expands
	the
	rights
	of
	employees,
	to
	strip
	employees
in
	units
	with
	no
	exclusive
	representative
	of
	any
	voice
	in
	a
matter
	as
	basic
	as
	wages.
Two
	statutory
	provisions 	strongly
	militate
	against
	such
	an
interpretation.
	First,
	there
	is
	no
	requirement
	under
	the
	SEERA
that
	employees
	select
	an
	exclusive
	representative.
(Sec.
	3515.)
	Second,
	nonexclusive
	representatives
	have
	the
right
	to 	represent
	their
	members
	in
	their
	employment
	relations
with 	the
	state 	until
	an
	exclusive
	representative 	is
recognized.
	(Sec.
	3515.5, 	supra.)
	The
	Board
	finds
	that
	the
thrust
	of 	these
	two
	sections
	is
	to 	protect
	the
	right 	of
employees
	to
	be
	represented
	by 	a
	nonexclusive
	representative
when 	an
	exclusive 	representative
	has
	not
	been
	selected.
Every 	agreement
	entered 	into
	as
	a
	result
	of 	the 	negotiating
process 	includes
	many 	noneconomic
	items.
	Fundamental
	to
	all
agreements,
	however,
	are
	economic
	items 	such
	as
	wages
	and
fringe 	benefits.
	The
	foremost
	interest
	of
	employees
	is 	to
the
	payment
	of
	an 	adequate 	There
	e, 	without
deciding 	the 	fu 	scope
	right 	of
	r
	esentation 	of
8

nonexclusive
employer a subject as basic to the employment relationship as
Such a finding not only comports with the above provisions
but also furthers the general purpose of the SEERA to promote
full communication between the state and its employees and the
improvement of personnel management and employer-employee
relations.9
We stress, however, that the obligation imposed on the
state employer to meet with a nonexclusive representative is
not the same as that imposed with regard to an exclusive
representative. Thus, whereas the Governor and representatives
of recognized or certified employee organizations "have the
9Section 3512 states that it is the purpose of the SEERA:
. to promote full communication between
the state and its employees by providing a
reasonable method of resolving disputes
regarding wages, hours, and other terms and
conditions of employment between the state
and public employee organizations. It is
also the purpose of this chapter to promote
the improvement of personnel management and
employee-employer relations within the State
of California by providing a uniform basis
for recognizing the right of state employees
to join organizations of their own choosing
and be represented by such organizations in
their employment relations with the state.
nonexclusive representatives, the Board finds that at a minimum	
at
	a 	minimum
it
	encompasses
	the
	right
	to
	meet
	and
	discuss
	with
	the
	state
employer
	a
	subject
	as
	basic 	to
	the
	employment
	relationship
	as
wages .
Such 	a
	finding
	not 	only
	comports
	with
	the
	above
	provisions
but
	also 	furthers
	the 	general
	purpose
	of 	the
	SEERA
	to
	promote
full
	communication 	between
	the
	state
	and
	its
	employees 	and
	the
improvement
	of
	personnel
	management 	and
	employer-employee
relations.
9
We
	stress,
	however,
	that
	the
	obligation
	imposed 	on
	the
state
	employer
	to
	meet
	with
	a
	nonexclusive
	representative
	is
not 	the
	same
	as
	that
	imposed
	with 	regard
	to
	an
	exclusive
representative.
	Thus, 	whereas
	the
	Governor
	and
	representatives
of
	recognized 	or
	certified
	employee
	organizations
	"have
	the
9section
	3512
	states 	that
	it
	is
	the 	purpose
	of 	the
.
	to
	promote
	full
	communication 	between
the
	state
	and
	its
	employees
	by
	providing
	a
reasonable
	method
	of 	resolving 	disputesregarding
	wages,
	hours,
	and
	other
	terms
	and
conditions 	of
	employment 	between
	the
	state
and
	public
	employee
	organizations.
	It
	isalso 	the 	purpose
	this
	chapter 	to
	promote
the
	improvement
	of 	personnel
	management 	and
employee-employer
	relations
	within 	the 	Stateof 	California 	by 	providing
	a
	uniform
	basisfor 	recognizing 	the
	right 	of
	state
	employees
to 	join 	organizations 	of 	their
	own
	choosingand 	be
	represented
	by 	such
	organizations 	in
their
	employment
	relations
	with 	the
	state.
9
representatives,
	the
	Board
	finds
	that
it encompasses the right to meet and discuss with the state
wages.

mutual obligation personally to meet and confer [in good faith]
promptly upon request by either party and continue for a
reasonable period of time in order to exchange freely
information, opinions, and proposals, and to endeavor to reach
agreement on matters within the scope of representation . . 	. "
(section 3517) the Board finds that the obligation imposed by
the statute on the state employer with respect to nonexclusive
representatives is to provide a reasonable opportunity to meet
and discuss wages with them prior to the time the employer
reaches or takes action on a policy decision.
Based on the circumstances which existed on July 5, 1978,
the Governor was excused from meeting and discussing wages with
PECG. As stated previously, the Governor had proposed a
specified salary increase for state employees and his
designated representatives had met with representatives of PECG
to discuss that proposal, all at a time when the parties were
subject to the provisions of the 	n Act. The SEERA
became effective on July 1, 1978. On July 5, which was the
very same day that the Legislature enacted the budget bill,
PECG requested a meeting with representatives of the Governor's
Office of Employee Relations to discuss wages. It is important
to note that this final legislative action on the 1978 budget
bill came almost three weeks after the time limit im 	d by
10
mutual
	obligation
	personally 	to
	meet
	and
	confer
	[in
	good
	faith]
promptly
	upon
	request
	by
	either
	party
	and
	continue 	for
	a
reasonable 	period
	of
	time
	in 	order
	to
	exchange
	freely
information, 	opinions,
	and
	proposals,
	and
	to
	endeavor
	to
	reach
agreement
	on
	matters 	within 	the
	scope
	of
	representation
	..•
"
(section
	3517)
	the
	Board
	finds
	that
	the
	obligation
	imposed
	by
the
	statute
	on
	the
	state
	employer
	with
	respect 	to
	nonexclusive
representatives 	is
	to 	provide
	a
	reasonable 	opportunity 	to
	meet
and
	discuss
	wages
	with
	them
	prior
	to
	the
	time
	the
	employer
reaches 	or 	takes 	action
	on 	a
	policy 	decision.
Based
	on
	the 	circumstances
	which
	existed
	on
	July
	5, 	1978,
the
	Governor
	was
	excused
	from
	meeting
	and
	discussing
	wages
	with
PECG. 	As
	stated
	previously, 	the
	Governor
	had
	proposed
	a
specified 	salary 	increase
	for
	state
	employees
	and
	his
designated
	representatives
	had 	met
	with
	representatives 	of
	PECG
to 	discuss 	that
	proposal,
	all
	at
	a
	time
	when
	the
	parties
	were
subject 	to	
the
	previsions George Brow
	George	
Brown
	Act. 	The
	SEERA
became
	effective
	on
	July 	1,
	1978.
	On
	July
	5,
	which 	was
	the
very
	same 	day
	that
	the 	Legislature
	enacted 	the
	budget
	bill,
PECG
	requested
	a
	meeting 	with
	representatives 	of 	the 	Governor's
Office 	of
	Employee
	Relations 	to 	discuss
	wages.
	It
	is
	important
to 	note
	that 	this 	final 	legislative 	action
	on
	the
	1978
	budget
bill
	came
	almost 	three
	weeks
	after
	the 	time 	1 pose	t 	imposed	
by
10

the Constitution for its passage. 10 Thus, by the time the
Legislature completed its final action on the budget bill and
sent it to the Governor, the 1978-79 fiscal year had already
begun. Until the Governor acted by signing the budget, the
Controller was prohibited from issuing warrants drawn on the
State Treasury to pay, among other things, the expenses being
incurred daily by the state (sec. 7, Art. XVI, Cal. Const. ) .
The necessity for quick action on the part of the Governor was,
therefore, manifest and in this context his failure to meet
with PECG on July 5 to discuss wages was not unreasonable.
In addition, at the time the series of events occurred in
this case, San Diegueto, supra, was the only Board precedent
available to serve as a guide to the parties that interpreted
the breadth of a nonexclusive employee representative's right
to represent its members in their employment relations. 	Even
though that case was decided under the EERA it was based, in
part, on an interpretation of statutory language basically
paralleling that contained in the SEERA with which we are here
concerned. While we have chosen in this case, decided under
10The California Constitution requires the Legislature to
pass the budget bill by midnight on June 15 of each year
(Art. IV, sec. 12(c) , Cal. Const. ) .
11
the
	Constitution
	for
	its
	passage.10	
Thus,
	by
	the
	time
	the
Legislature
	completed
	its
	final
	action
	on
	the
	budget
	bill
	and
sent
	it
	to
	the
	Governor,
	the 	1978-79
	fiscal
	year
	had
	already
begun.
	Until
	the
	Governor
	acted
	by
	signing 	the 	budget,
	the
Controller
	was
	prohibited
	from
	issuing 	warrants
	drawn
	on
	the
State
	Treasury
	to
	pay,
	among
	other
	things,
	the
	expenses
	being
incurred
	daily
	by
	the
	state
	(sec.
	7,
	Art.
	XVI,
	Cal.
	Const.).
The
	necessity
	for
	quick
	action
	on
	the
	part
	of
	the
	Governor 	was,
therefore,
	manifest
	and
	in
	this
	context
	his
	failure
	to
	meet
with
	PECG
	on
	July	
5	
to 	discuss
	wages 	was
	not 	unreasonable.
In
	addition,
	at
	the
	time
	the
	series
	of 	events 	occurred 	in
this
	case,
	San
	Dieguito, 	~upra,
	was
	the 	only
	Board
	precedent
available
	to 	serve 	as
	a
	guide
	to
	the
	parties 	that 	interpreted
the 	breadth 	of
	a
	nonexclusive
	employee
	representative's 	right
to 	represent
	its
	members
	in
	their
	employment
	relations.
	Even
though
	that
	case
	was
	decided
	under
	the
	EERA
	it
	was
	based, 	in
part,	
on
	an	
interpretation
	of
	statutory
	language
	basically
paralleling 	that
	contained 	in 	the
	SEERA
	with
	which
	we
	are 	here
concerned.
	While
	we
	have 	chosen
	in
	this
	case,
	decided 	under
SEERA, not to follow the San Diegueto holding, the state
employer was not unreasonable in relying on the assumption that
this Board would follow San Diegueto.
lOThe
	California 	Constitution 	requires 	the 	Legislature 	topass 	the 	budget
	bill
	by
	midnight 	on 	June 	15 	of 	each 	year
(Art.	
IV,	
sec.
	12
(c)
,	
Cal. 	Const.)
.
SEERA,
	not
	to 	follow 	the
	San
	Dieguito
	ho 	i 	,
	the
	sta
employer
	was
	not 	unreasonable 	in 	relying
	on
	the 	assumption
	that
this
	Board 	would
	follow
	San
	Dieguito.
11

While reliance on EERA precedent alone may not be a
sufficient defense, we find that this factor coupled with the
specific circumstances in this case warrant a finding that the
actions of the state employer were not unreasonable and did not
violate its obligations under the SEERA.
Supervisory Employees
We affirm the hearing officer's dismissal of the charge
that the actions of the Governor denied PECG its right to
represent its supervisory members in their employment relations
with the state. 	State of California, Department of Health
(1/10/79) PERB Decision No. 86-S, involved an allegation that
the state employer had engaged in conduct that violated
Sections 3522.3- and 3522.8. 2 In that case the Board
1lsection 3522.3 reads as follows:
Supervisory employees shall have the right
to form, join, and participate in the
activities of employee organizations of
their own choosing for the purpose of
representation on all matters of supervisory
employee-employer relations as set forth in
Section 3522.6. Supervisory employees also
shall have the right to refuse to join or
participate in the activities of employee
organizations and shall have the right to
represent themselves individually in their
employment relations with the public
employer .
12section 3522.8 reads as follows:
The state employer and employee
organizations shall not interfere with,
12
While
	reliance
	on
	EERA
	precedent
	alone
	may
	not
	be 	a
sufficient
	defense,
	we
	find
	that
	this
	factor
	coupled 	with
	the
specific
	circumstances 	in
	this
	case 	warrant
	a
	finding
	that
	the
actions 	of
	the
	state
	employer
	were
	not 	unreasonable
	and
	did 	not
violate
	its
	obligations
	under
	the
	SEERA.
Supervisory
	Employees
we
	affirm
	the 	hearing
	officer's
	dismissal 	of 	the
	charge
that
	the
	actions 	of
	the
	Governor
	denied
	PECG
	its
	right
	to
represent
	its
	supervisory
	members
	in
	their
	employment
	relations
with 	the
	state.
	State 	of
	California,
	Department
	of
	Health
(1/10/79)
	PERB
	Decision
	No.
	86-S, 	involved
	an
	allegation
	that
the
	state
	employer
	had
	engaged
	in
	conduct
	that 	violated
Sections
	3522.3
11 	and
	3522.a.
12	
In
	that
	case 	the
	Board
llsection
	3522.3
	reads 	as 	follows:
Supervisory
	employees
	shall
	have
	the
	right
to
	form,
	join,
	and
	participate
	in 	the
activities
	of
	employee
	organizations 	of
their
	own
	choosing
	for 	the 	purpose
	of
representation
	on
	all
	matters 	of 	supervisory
employee-employer
	relations
	as
	set 	forth
	in
Section 	3522.6. 	Supervisory
	employees
	also
shall
	have
	the
	right
	to 	refuse 	to 	join 	or
participate
	in 	the
	activities 	of
	employee
organizations
	and
	shall
	have
	the
	right 	to
represent
	themselves
	individually 	in
	their
employment
	relations 	th 	the 	publicemployer.
12section
	3522.8 	reads 	as 	follows:
The
	state
	employer 	and 	employee
organizations 	shall
	not 	fere 	with,
12

rejected the argument that the PERB was required to enact rules
to prevent employer interference with supervisors' rights under
SEERA. The Board concluded that the statutory scheme evidenced
a legislative intent that supervisors were to be excluded from
PERB's jurisdiction and that any vindication of supervisors'
rights must be through another forum.
It is noteworthy that in Health there was no allegation
that the employee organization, which was the charging party,
had been denied any rights guaranteed to it by SEERA in
violation of section 3519 (b) , supra. 	To allow an employee
organization to file a charge that Section 3519 (b) has been
violated because it allegedly has been denied the right to
represent its supervisory members in their employment relations
would have the effect of bootstrapping supervisory rights into
the statutory enforcement scheme. Thus, the unfair practice
mechanisms of SEERA are not only unavailable to supervisors but
also to employee organizations representing them to the extent
that the organization seeks to enforce a right solely related
to supervisors. 	However, as the Board stated in Health, "if
there is a reasonable inference that the [employer's] conduct
intimidate, restrain, coerce, or
discriminate against supervisory employees
because of their exercise of their rights
under this article.
13
rejected
	the
	argument
	that
	the
	PERB
	was
	required 	to 	enact
	rules
to
	prevent
	employer
	interference
	with
	supervisors'
	rights
	under
SEERA. 	The
	Board
	concluded
	that
	the
	statutory
	scheme
	evidenced
a
	legislative
	intent 	that
	supervisors
	were
	to
	be
	excluded
	from
PERB's
	jurisdiction
	and
	that
	any
	vindication 	of
	supervisors'
rights
	must
	be
	through 	another
	forum.
It
	is
	noteworthy
	that
	in
	Health
	there
	was 	no
	allegation
that
	the
	employee
	organization,
	which
	was
	the 	charging
	party,
had
	been
	denied
	any
	rights
	guaranteed
	to
	it
	by
	SEERA
	in
violation
	of 	section
	3519(b),
	supra.
	To
	allow
	an 	employee
organization 	to
	file
	a
	charge
	that
	Section
	3519(b)
	has 	been
violated
	because
	it
	allegedly
	has
	been
	denied
	the
	right 	to
represent
	its
	supervisory
	members
	in
	their
	employment
	relations
would 	have
	the
	effect
	of 	bootstrapping 	supervisory
	rights 	into
the
	statutory
	enforcement
	scheme. 	Thus,
	the
	unfair
	practice
mechanisms
	of
	SEERA
	are
	not 	only 	unavailable 	to 	supervisors
	but
also 	to
	employee
	organizations 	representing
	them
	to 	the
	extent
that
	the
	organization
	seeks
	to 	enforce
	a
	right 	solely 	related
to 	supervisors.
	However,
	as 	the
	Board
	stated
	in 	Health,
	"if
there 	is
	a
	reasonable 	inference
	that
	the 	[employer's] 	conduct
intimidate, 	restrain,
	coerce, 	or
discriminate 	against 	supervisory
	employees
because 	of 	their 	exercise	
of 	their 	rights
under
	this 	article.
13

had an adverse effect on nonsupervisory employees in the
exercise of their rights, an unfair practice charge will be
entertained vis a vis the nonsupervisory employee [s] . "
Charging party makes no allegation that any denial of its right
to represent supervisors adversely impacted on nonsupervisors.
In any event our finding that the Governor was excused from the
obligation to meet and discuss wages with PECG on behalf of its
rank and file members would resolve that issue.
Managerial Employees
As stated previously, managerial employees of the state
were covered by the provisions of the George Brown Act at the
time the unfair practice charge in this case was filed.
PECG's right to represent its managerial members was
granted pursuant to section 3528, supra, of the George Brown
Act, not pursuant to section 3515.5, supra, of the SEERA.
Any claim that charging party's right to represent its
managerial members has been denied must be resolved through
another forum as the PERB has no jurisdiction to either
administer the George Brown Act or to resolve any such claim
through the unfair practice provisions of the SEERA.
14
had 	an 	adverse 	effect 	on 	nonsupervisory 	employees 	in 	the
exercise 	of 	their 	rights, 	an 	unfair 	practice 	charge 	will 	be
entertained 	vis 	a 	vis 	the 	nonsupervisory 	employee[s] . 11
Charging 	party 	makes 	no 	allegation 	that 	any 	denial 	of 	its 	right
to 	represent 	supervisors 	adversely 	impacted 	on 	nonsupervisors.
In 	any 	event 	our 	finding 	that 	the 	Governor 	was 	excused 	from 	the
obligation 	to 	meet 	and 	discuss 	wages 	with 	PECG 	on 	behalf 	of 	its
rank 	and 	file 	members 	would 	resolve 	that 	issue.
Managerial 	Employees
As 	stated 	previously, 	managerial 	employees 	of 	the 	state
were 	covered 	by 	the 	provisions 	of 	the 	George 	Brown 	Act 	at 	the
time 	the 	unfair 	practice 	charge 	in 	this 	case 	was 	filed.
PECG's 	right 	to 	represent 	its 	managerial 	members 	was
granted 	pursuant 	to 	section 	3528, 	supra, 	of 	the 	George 	Brown
Act, 	not 	pursuant 	to 	section 	3515.5, 	~era, 	of 	the 	SEERA.
Any 	claim 	that 	charging 	party's 	right 	to 	represent 	its
managerial 	members 	has 	been 	denied 	must 	be 	resolved 	through
another 	forum 	as 	the 	PERB 	has 	no 	jurisdiction 	to 	either
administer 	the 	George 	Brown 	Act 	or 	to 	resolve 	any 	such 	claim
through 	the 	unfair 	practice 	provisions 	of 	the 	SEERA.
14

ORDER
The Public Employment Relations Board ORDERS that:
The unfair practice charge filed by Professional Engineers
in California Government against the State of California, is
hereby dismissed.
By: Barbara D. Moore
Raymond J. Gonzales, Member, concurring and dissenting:
I agree that the charges should be dismissed but dissent
from the majority rationale on two grounds.
First, I disagree with the majority that the SEERA applies
to negotiations for the 1978-79 fiscal year. I believe the
Legislature did not intend this when it enacted the SEERA to
become effective July 1, 1978. Second, I believe the
nonrecognized employee organization's right to represent its
members does not include a right to "discuss" matters within
scope with the employer.
15
ORDER
The
	Public
	Employment
	Relations
	Board
	ORDERS
	that:
The
	unfair
	practice
	charge
	filed
	by
	Professional
	Engineers
in
	California
	Government
	agains~
	the
	State
	of 	California,
	is
hereby
	dismissed.
By: 	Barbara
	D. 	Moore 	Harry Gluck, Chairperson	Harry
~-r
-'-	
~
Raymond
	J.
	Gonzales,
	Member,
	concurring
	and
	dissenting:
I
	agree
	that
	the 	charges 	should
	be
	dismissed
	but
	dissent
from
	the 	majority
	rationale
	on
	two
	grounds.
First,
	I
	disagree 	with 	the 	majority
	that
	the
	SEERA
	applies
to 	negotiations 	for 	the
	1978-79
	fiscal
	year.
	I
	believe 	the
Legislature 	did 	not 	intend
	this
	when
	it
	enacted 	the
	SEERA
	to
become
	effective
	July 	1,
	1978. 	Second,
	I
	believe 	the
nonrecognized 	employee
	organization's 	right
	to 	represent
	its
members
	does 	not 	include
	a
	right
	to 	"discuss" 	matters 	within
scope 	with 	the 	employer.
15
Gluck,
	Chairperson

Application of the SEERA to the Governor's action on
July 5, 1978 to freeze wages, which was the final action on
1978-79 wages, following meetings spanning several months,
seems clearly inappropriate in this case. 	I believe, to the
contrary, that the only reasonable interpretation of legislative
intention is that SEERA was intended to begin to apply to
negotiations in 1978-79 concerning compensation for 1979-80.
SEERA was obviously not intended to apply to negotiations for
the fiscal year beginning July 1, 1978, since its effective
date was stated as July 1, 1978, and it is obvious that the
type of extensive negotiations contemplated by SEERA, which
must take place prior to the new fiscal year, were not intended
to be accomplished in a matter of minutes. On the contrary, the
SEERA is unequivocal in prescribing a lengthy and detailed meet
and consult procedure. 	Because the SEERA did not become
SEERA section 3517 states, in part:
"Meet and confer in good faith" means that
the Governor or such representatives as the
Governor may designate, and representatives
of recognized employee organizations, shall
have the mutual obligation personally to
meet and confer promptly upon request by
either party and continue for a reasonable
period of time in order to exchange freely
information, opinions, and proposals, and
to endeavor to reach agreement on matters,
within the scope of representation prior to
the adoption by the state of its final
budget for the ensuing year. 	The process
should include adequate time for the
resolution of impasses. 	(Emphasis added.)
SEERA section 3517.5 states:
16
Application
	of
	the
	SEERA
	to 	the
	Governor's
	action
	on
July
	5,
	1978
	to 	freeze
	wages, 	which
	was
	the
	final
	action
	on
1978-79 	wages,
	following 	meetings 	spanning
	several
	months,
seems
	clearly
	inappropriate 	in
	this
	case.
	I
	believe,
	to 	the
contrary,
	that
	the
	only 	reasonable
	interpretation
	of
	legislative
intention
	is
	that
	SEERA
was
	intended
	to
	begin
	to
	apply
	to
negotiations 	in
	1978-79
	concerning
	compensation
	for
	1979-80.
SEERA
was
	obviously 	not 	intended
	to
	apply
	to 	negotiations 	for
the
	fiscal
	year 	beginning
	July 	1,
	1978,
	since
	its
	effective
date
	was
	stated
	as
	July 	1,
	1978, 	and
	it
	is
	obvious
	that
	the
type
	of 	extensive 	negotiations
	contemplated
	by
	SEERA,
	which
must
	take 	place
	prior
	to 	the
	new
	fiscal
	year,
	were
	not 	intended
to
	be
	accomplished
	in
	a
	matter 	of
	minutes.
	On
	the
	contrary,
	the
SEERA
	is
	unequivocal
	in 	prescribing
	a
	lengthy
	and
	detailed
	meet
and
	consult
	procedure.
1
Because
	the
	SEERA
	did 	not
	become
1 sEERA
	section
	3517
	states, 	in 	part:
"Meet
	and
	confer
	in
	good
	faith"
	means
	that
the
	Governor
	or
	such
	representatives
	as 	the
Governor
	may
	designate,
	and
	representatives
of 	recognized
	employee
	organizations, 	shall
have
	the
	mutual
	obligation 	personally 	to
meet 	and
	confer 	promptly
	upon
	request
	by
either 	party
	and
	continue 	for
	a
	reasonable
period 	of
	time
	in 	order 	to
	exchange
	freely
information, 	opinions,
	and
	proposals, 	and·
to 	endeavor 	to 	reach 	agreement 	on
	matters,
within 	the 	scope
	of 	representation 	prior 	to
the 	adoption
	by
	the
	state 	of
	its
	final
budget 	for 	the 	ensuing 	year.
	The
	process
should 	include 	adequate 	time 	for 	the
resolution 	of 	impasses. 	(Emphasis 	added.)
SEERA
	section 	3517.5
	states:
16

effective until the beginning of the new fiscal year following
its passage, and because the SEERA contemplates negotiations
prior to the new fiscal year, SEERA was not intended to apply
to salary setting for 1978-79. Yet this is exactly what the
complained of Governor's July 6 action did; it set salaries
for the 1978-79 fiscal year. Thus, his action was the final
one, culminating several months of salary discussions for
1978-79 pursuant to the George Brown Act. 	Therefore, in
If agreement is reached between the Governor
and the recognized employee organization,
they shall jointly prepare a written
memorandum of such understanding which shall
be presented, when appropriate, to the
Legislature for determination.
SEERA section 3517.6 states, in part:
If any provision of the memorandum of
understanding requires the expenditure of
funds, those provisions of the memorandum of
understanding shall not become effective
unless approved by the Legislature in the
annual Budget Act. If any provision of the
memorandum of understanding requires
legislative action to permit its
implementation by amendment of any section
not cited above, those provisions of the
memorandum of understanding shall not become
effective unless approved by the Legislature.
As the majority notes, this was not a typical month of June.
In the aftermath of Proposition 13, the Legislature did not
complete its action, and present it to the Governor, until July 5.
He then acted the next day, July 6, six days after the close of
the past fiscal year.
In this connection, I note that both legislative and guberna-
torial final action on the budget is required before the end of
June. (See California Constitution, Art. IV, secs. 10(a) and (b) ,
and sec. 12 (c) .) Thus, by not acting until July 5 and July 6, the
17
effective
	until
	the 	beginning
	of
	the
	new
	fiscal
	year 	following
its
	passage,
	and
	because
	the
	SEERA
	contemplates
	negotiations
prior
	to
	the
	new
	fiscal
	year,
	SEERA
was
	not 	intended
	to
	apply
to
	salary
	setting
	for
	1978-79.
	Yet
	this 	is
	exactly
	what
	the
complained
	of
	Governor's
	July
	6
	action
	did;
	it
	set 	salaries
for 	the
	1978-79
	fiscal
	year.
	Thus,
	his 	action
	was
	the
	final
one,
	culminating
	several
	months
	of 	salary
	discussions 	for
1978-79
	pursuant 	to 	the
	George
	Brown
	Act.
2
Therefore,
	in
If
	agreement
	is
	reached
	between
	the
	Governorand
	the 	recognized
	employee
	organization,
they
	shall 	jointly
	prepare
	a
	written
memorandum
	of
	such
	understanding
	which
	shall
be
	presented,
	when
	appropriate, 	to 	the
Legislature 	for 	determination.
SEERA
	section
	3517.6
	states,
	in 	part:
If
	any
	provision 	of 	the
	memorandum
	of
understanding
	requires 	the 	expenditure 	of
funds, 	those 	provisions 	of 	the
	memorandum
	ofunderstanding
	shall
	not
	become
	effective
unless
	approved
	by
	the 	Legislature 	in
	theannual
	Budget
	Act.
	If
	any
	provision 	of 	the
memorandum
	of 	understanding
	requires
legislative
	action 	to 	permit
	its
implementation
	by 	amendment
	of
	any
	sectionnot
	cited
	above,
	those 	provisions 	of 	the
memorandum
	of 	understanding
	shall
	not
	become
effective
	unless
	approved
	by
	the 	Legislature.
2As
	the 	majority 	notes,
	this
	was
	not
	a
	typical
	month
	of
	June.
In 	the 	aftermath 	of 	Proposition 	13, 	the 	Legislature 	did 	notcomplete
	its
	action,
	and
	present
	it
	to 	the 	Governor,
	until
	July 	5.
He
	then 	acted 	the 	next 	day,
	July
	6,
	six
	days
	after
	the 	close 	of
the 	past 	fiscal 	year.
In
	this 	connection,
	I
	note
	that
	both
	legislative
	and
	guberna-
torial 	final 	action
	on
	the 	budget
	is
	required 	before 	the 	end 	ofJune. 	(See
	California 	Constitution, 	Art.
	IV,
	secs.
	10 (a) 	and 	(b),and 	sec. 	12(c) .) 	Thus, 	by 	not 	acting 	until 	July
	5 	and
	July 	6, 	the
17

applying the SEERA to this case, the majority ignores the entire
process envisioned by the statute, and interprets the commencement
of SEERA obligations in an overly literal manner.
The majority is applying the SEERA merely to one isolated
segment of the negotiations process; i.e., the final one. I
believe, however, that the SEERA was intended to establish an
integrated negotiating process, and that the majority's strained
and literal interpretation is unreasonable when considered in
full context.
Second, I believe that under the SEERA 	the nonrecognized
employee organization has no right to discuss matters within
scope with the employer. The employer should have no
corresponding obligation to discuss a matter within scope before
taking action.
This issue was decided by PERB in interpreting a parallel
section of the Educational Employment Relations Act. (San
Dieguito Union High School District (9/2/77) EERB Decision No. 22.)
I believe the principles underlying that case should control here.
However, I recognize this case may no longer be relied upon for
authority since the majority has clearly, if obliquely,
disapproved of it here.
The central issue is whether the employee organization's
"right to represent their members" included in section 3515.5
Legislature and the Governor respectively may have been technically
in violation of the law. I question whether such a violation, if
it occurred, should operate to make such actions subject to SEERA
when had they properly completed action on the budget by June 30,
there would have been no SEERA obligations.
18
applying 	the 	SEERA 	to 	this 	case, 	the majority 	ignores 	the 	entire
process 	envisioned 	by 	the 	statute, 	and 	interprets 	the 	commencement
of 	SEERA obligations 	in 	an 	overly 	literal 	manner.
The 	majority 	is 	applying 	the 	SEERA merely 	to 	one 	isolated
segment 	of 	the 	negotiations 	process; 	i.e., 	the 	final 	one. 	I
believe, 	however, 	that 	the 	SEERA was 	intended 	to 	establish 	an
integrated 	negotiating 	process, 	and 	that 	the 	majority's 	strained
and 	literal 	interpretation 	is 	unreasonable 	when 	considered 	in
full 	context.
Second, 	I 	believe 	that 	under 	the 	SEERA 	the 	nonrecognized
employee 	organization has 	no 	right 	to 	discuss 	matters 	within
scope 	with 	the 	employer. 	The 	employer 	should have 	no
corresponding 	obligation 	to 	discuss 	a 	matter within 	scope 	before
taking 	action.
This 	issue 	was 	decided 	by 	PERB 	in 	interpreting a 	parallel
section 	of 	the 	Educational 	Employment 	Relations 	Act. 	(San
Dieguito 	Union 	High 	School 	District 	(9/2/77) 	EERB 	Decision 	No. 	22.)
I 	believe 	the 	principles 	underlying 	that 	case 	should 	control 	here.
However, 	I 	recognize 	this 	case 	may 	no 	longer 	be 	relied 	upon 	for
authority 	since 	the 	majority 	has 	clearly, 	if 	obliquely,
disapproved 	of 	it here.
The 	central 	issue 	is 	whether 	the 	employee 	organization's
"right 	to 	represent 	their 	members" 	included 	in 	section 	3515.5
Legislature 	and 	the 	Governor 	respectively may 	have 	been 	technically
in 	violation 	of 	the 	law. 	I 	question whether 	such 	a 	violation, 	if
it 	occurred, 	should 	operate 	to 	make 	such 	actions 	subject 	to 	SEERA
when had 	they 	properly 	completed 	action 	on 	the 	budget 	by 	June 	30,
there 	would 	have 	been 	no 	SEERA 	obligations.
18

includes a right to discuss matters within scope with the
employer.
Unlike the explicit right of a recognized employee
organization to meet and confer in good faith (sections 3517
and 3519(c) ) , a right to discuss appears nowhere in the statute.
Thus, the majority has read such a right into the nonrecognized
employee organization's right to represent.
A basic argument for reading in this right is that the
Legislature would not have provided fewer rights to employee
organizations than enjoyed under the predecessor statute, the George
Brown Act. I feel this is mere conjecture, and not an adequate
foundation for finding such a significant right where none
explicitly appears. The SEERA contemplates a very different
overall negotiation design than did the George Brown Act.
Where SEERA contemplates exclusive representation by a single
employee organization (in an appropriate unit) , the George Brown
Act did not provide for exclusivity or an effective good faith
negotiation obligation.
Because there can be exclusivity under SEERA, minority
organizations, which enjoyed George Brown Act rights, will lose
them under exclusive representation. If they could retain their
rights to meet and confer under SEERA, it would be to their
advantage to attempt to thwart exclusive representation. Such
activity would be incompatible with the objective of the SEERA
to provide for a totally new process of collective negotiations,
with exclusive representation, where the employees so choose.
19
includes 	a 	right 	to 	discuss 	matters 	within 	scope 	with 	the
employer.
Unlike 	the 	explicit 	right 	of 	a 	recognized 	employee
organization 	to 	meet 	and 	confer 	in 	gcod 	faith 	(sections 	3517
and 	3519(c)), 	a 	right 	to 	discuss 	appears 	nowhere 	in 	the 	statute.
Thus, 	the 	majority 	has 	read 	such 	a 	right 	into 	the 	nonrecognized
employee 	organization's 	right 	to 	represent.
A basic 	argument 	for 	reading 	in 	this 	right 	is 	that 	the
Legislature 	would 	not 	have 	provided 	fewer 	rights 	to 	employee
organizations 	than 	enjoyed 	under 	the 	predecessor 	statute, 	the 	George
Brown 	Act. 	I 	feel 	this 	is 	mere 	conjecture, 	and 	not 	an 	adequate
foundation 	for 	finding 	such 	a 	significant 	right 	where 	none
explicitly 	appears. 	The 	SEERA contemplates 	a 	very 	different
overall 	negotiation 	design 	than 	did 	the 	George 	Brown 	Act.
Where 	SEERA 	contemplates 	exclusive 	representation 	by 	a 	sinqle
employee 	organization 	(in 	an 	appropriate 	unit), 	the 	George 	Brown
Act 	did 	not 	provide 	for 	exclusivity 	or 	an 	effective 	good 	faith
negotiation obligation.
Because 	there 	can 	be 	exclusivity 	under 	SEERA, 	minority
organizations, 	which 	enjoyed 	George 	Brown 	Act 	rights, 	will 	lose
them 	under 	exclusive 	representation. 	If 	they 	could 	retain 	their
rights 	to meet 	and 	confer 	under 	SEERA, 	it would 	be 	to 	their
advantage 	to 	attempt 	to 	thwart 	exclusive 	representation. 	Such
activity would 	be 	incompatible 	with 	the 	objective 	of 	the 	SEERA
to 	provide 	for 	a 	totally 	new 	process 	of 	collective 	negotiations,
with 	exclusive 	representation, 	where 	the 	employees 	so 	choose.
19

Finally, I believe that in enacting SEERA, the Legislature
intended to bring an end to a situation in which a multitude of
employee organizations separately enjoyed, and could exercise,
a right to meet and confer with the employer. The resulting
rounds of meeting would be endless and confusing, and ultimately
would contradict the reasons for the passage of SEERA.
I concur in the majority decision regarding supervisory and
managerial employees.
20
Finally, 	I'believe 	that 	in 	enacting 	SEERA, 	the 	Legislature
intended 	to 	bring 	an 	end 	to 	a 	situation 	in which 	a 	multitude 	of
employee 	organizations 	separately 	enjoyed, 	and 	could 	exercise,
a 	right 	to 	meet 	and 	confer 	with 	the 	employer. 	The 	resulting
rounds 	of 	meeting 	would 	be 	endless 	and 	confusing, 	and 	ultimately
would 	contradict 	the 	reasons 	for 	the 	passage 	of 	SEERA.
I 	concur 	in 	the 	majority 	decision 	regarding 	supervisory 	and
managerial 	employees.
Raymond J. Gonzales, Member	/ 	Rayny5"nd 	J. 	Gor(zalest; 	Member
20

PUBLIC EMPLOYMENT RELATIONS BOARD
OF THE STATE OF CALIFORNIA
PROFESSIONAL 	ENGINEERS 	IN 	CALIFORNIA)
GOVERNMENT (PECG) ,
Charging Party, 	Case No. S-CE-7-S (78-79)
V.
STATE OF CALIFORNIA, 	NOTICE OF DISMISSAL
WITH LEAVE TO AMEND
Respondent.
Notice is hereby given that the above-captioned unfair
practice charge is dismissed with leave to amend within twenty
(20) calendar days after service of this Notice.
The charge alleges that the "state and its representa-
tives" violated Government Code sections 3519 (b) and 3515.5 by a
series of actions culminating in the Governor's signature of a
budget bill on July 6, 1978. The bill, as signed, eliminated a
salary increase for state employees, including members of the
charging party. It is alleged that such actions were taken with-
out warning, notification, or meeting with the charging party.
It is contended by the charging party that prior to
the selection of an exclusive representative employee organiza-
tions retain the right to meet and confer comparable to the
right previously provided in the George Brown Act (Government
Code sections 3525-3536). The statutory basis for this conten-
tion is SEERA section 3515.5, which provides in part, "Employee
organizations shall have the right to represent their members
in their employment relations with the state, except that once
an employee organization is recognized as the exclusive repre-
sentative of an appropriate unit, the recognized employee
organization is the only organization that may represent that
unit in employment relations with the state."
Under the George Brown Act, which was amended by
Senate Bill 839 to exclude from coverage those employees covered
by the SEERA, section 3528 provided a right parallel to SEERA
section 3515.5. 	That section provided, "Employee organizations
shall have the right to represent their members in their employ-
ment relations, including grievances, with the state." A wholly
(
PUBLIC 	EMPLO:(MENT 	RELATIONS 	BOARD
OF 	THE 	STATE 	OF 	CALIFORNIA
PROFESSIONAL ENGINEERS IN CALIFORNIA
GOVERNJ:1ENT 	(PEGG) ,
Charging 	Party,
V.
STATE OF 	CALIFORNIA,
Respondent.
)
)
)
)
)
)
)
)
)
)
___________________ )
Case 	No. 	S-CE-7-S 	(78-79)
NOTICE 	OF 	DISMISSAL
WITH 	LEAVE 	TO 	AMEND
Notice 	is 	hereby 	given 	that 	the 	above-captioned 	unfair
practice 	charge 	is 	dismissed with 	leave 	to 	amend within 	twenty
(20) 	calendar 	days 	after 	service 	of 	this 	Notice.
The 	charge 	alleges 	that 	the 	"state 	and 	its 	representa-
tivesn 	violated 	Government 	Code 	sections 	3519(b) 	and 	3515.5 	by 	a
series 	of 	actions 	culminating 	in 	the 	Governor's 	signature 	of 	a
budget 	bill 	on 	July 	6, 	1978. 	The bill, 	as 	signed, 	eliminated 	a
salary 	increase 	for 	state 	employees, 	including members 	of 	the
charging 	party. 	It 	is 	alleged 	that 	such 	actions 	were 	taken 	with-
out 	warning, 	notification, 	or meeting with 	the 	charging 	party.
It 	is 	con tended by 	the 	charging 	party 	that 	prior 	to
the 	selection 	of 	an 	exclusive 	representative 	employee 	organiza-
tions 	retain 	the 	right 	to 	meet 	and 	confer 	comparable 	to 	the
right 	previously 	provided 	in 	the 	George 	Brown Act 	(Government
Code 	sections 	3525-3536). 	The 	statutory 	basis 	for 	s 	conten-
tion 	is 	SEERA 	section 	3515.5, 	which 	provides 	part, 	"Employee
organizations 	shall 	have 	the 	right 	to 	represent 	their 	members
in 	their 	employment 	relations 	with 	the 	state, 	except 	that 	once
an 	employee 	organization 	is 	recognized 	as 	the 	exclusive 	repre-
sentative 	of 	an 	appropriate 	unit, 	the 	recognized 	employee
organizat 	the 	only 	organization 	that may 	represent
unit 	in 	employment 	relations 	with 	the 	state."
Under 	the 	George 	Brown Act, 	which was 	amended by
Senate 	Bill 	839 	to 	exclude 	from 	coverage 	those 	employees 	covered
by 	the 	SEERA, 	section 	3528 	provided 	a 	right 	parallel 	to 	SEERA
section 	3515.5. 	That 	section 	provided, 	"Employee 	organizations
shall have 	the 	right 	to 	represent 	their 	members 	in 	their 	employ-
ment 	relations, 	including 	grievance.s,with 	the 	state." 	A wholly
-1-

separate provision of the George Brown Act, section 3530,
provided that the state had the obligation to meet and confer
in good faith with employee organizations upon request with
respect to matters within the scope of representation. 	It
was the latter section which the court interpreted in Lipow v.
Regents of the University of California (1975) 54 C.A. 3d 215,
as establishing an obligation to meet and confer in good faith
in a manner comparable to the duty to bargain in good faith
under the National Labor Relations Act.
The charging party's reliance on the Lipow case as
establishing the parameters of the state's duty under SEERA
prior to the selection of an exclusive representative is mis-
placed. This is because section 3530, which was the basis for
the court's holding in Lipow, no longer has application to
employees covered by the SEERA. The separate right of employee
organizations "to represent their members" under George Brown
Act section 3528 and SEERA section 3515.5 has never been inter-
preted as imposing a meet and confer obligation on public
employers. The parallel provision in the EERA (sec. 3543. 1(a))
has been found not to impose upon public school employers an
obligation to consult with employee organizations prior to the
selection of an exclusive representative. San Diegueto Faculty
Association v. San Diegueto Union High School District (9/2/77)
EERB Decision No. 22.
For the above reasons, the charge is dismissed insofar
as it alleges that the charging party has been denied the right
to represent its non-supervisory, non-management, and non-
confidential members in violation of sections 3519 (b) and
3515.5.
In addition, the charging party alleges that the State
has violated section 3522.4, which establishes the right of
employee organizations to represent their "supervisory employee
members." 	However, section 3522 provides, "Except as provided
by Sections 3522.1 to 3522.9, inclusive, supervisory employees
shall not have the rights or be covered by any provision or
definition established by this chapter. " Thus, even assuming
that the charging party could state a prima facie case that
there had been a denial of the right to represent its supervisory
employee members, that right would not be enforceable through
the unfair practice provisions of the SEERA. Therefore, the
PERB lacks jurisdiction over the alleged sectio
and this aspect of the unfair practice charge is d
Finally, the charging party asserts a violation of
section 3528 in that it has been denied the right to represent
its managerial and confidential employee members. Section 3528,
as noted previously, is contained in the George Brown Act. That
Act is codified as title 1, division 4, chapter 10.5 of the
Government Code. The SEERA is codified as title 1, division 4,
chapter 10.3 of the Government Code. The PERB is given the
-2-
(
separate 	provision 	of
	the
	George
	Brown
	Act,
	section
	3530,
provided
	that
	the
	state
	had
	the
	obligation
	to
	meet 	and
	confer
in
	good
	faith
	with
	employee
	organizations
	upon
	request 	with
respect
	to 	matters 	within
	the
	scope
	of
	representation.
	It
was
	the
	latter
	section
which
	the 	court
	interpreted
	in
Lipow
	v.Regents
	of 	the
	University 	of 	California
	(1975)
	54
	C.A.3d 	215,
as
	establishing
	an
	obligation 	to
	meet 	and
	confer
	in
	good
	faith
in
	a
	manner
	comparable
	to
	the
	duty
	to 	bargain
	in
	good
	faith
under
	the 	National
	Labor
	Relations
	Act.
The
	charging
	party's
	reliance
	on
	the
	Lipow
	case 	as
establishing
	the 	parameters
	of 	the
	state's
	duty 	under
	SEERA
prior
	to 	the
	selection
	of
	an
	exclusive
	representative
	is
	mis-
placed.
	This
	is
	because
	section
	3530,
	which
	was
	the
	basis 	forthe
	court's
	holding
	in
Lipow, 	no
	longer
	has
	application
	to
employees
	covered
	by
	the
	SEERA.
	The
	separate
	right
	of
	employee
organizations
	"to
	represent
	their
	members
' 1
under
	George
	Brown
Act
	section
	3528
	and
	SEERA
	section
	3515.5
	has
	never
	been
	inter-
preted
	as
	imposing
	a
	meet 	and
	confer
	obligation
	on
	public
employers.
	The
	parallel
	provision 	in
	the
	EER.A
	(sec.
	3543.l(a))
has 	been
	found
	not 	to
	impose 	upon
	public 	school
·employers 	an
obligation
	to 	consult with
	employee
	organizations
	prior
	to
	the
selection
	of
	an
	exclusive
	representative.
	San
	Dieguito
	Facu1tfAssociation
	v.
	San
	Dieguito
	Union 	High
	School
	District
	(9/2/77
EERB
	Decision
	No.
	22.
For
	the
	above
	reasons, 	the
	charge
	is
	dismissed
	insofar
as
	it
	alleges
	that
	the
	charging
	party
	has 	been
	denied 	the
	right
to 	represent
	its
	non-supervisory,
	non-management, 	and non-
confidential
	members
	in 	violation
	of 	sections
	3519(b) 	and
3515.5.
In
	addition, 	the 	charging party 	alleges 	that
	the
	State
has
	violated 	section
	3522.4, 	which
	establishes
	the
	right 	of
employee
	organizations 	to 	represent
	their
	"supervisory
	employee
members."
	However,
	section
	3522
	provides,
	"Except 	as
	provided
by
	Sections
	3522.1
	to
	3522.9,
	inclusive, 	supervisory
	employees
shall
	not
	have
	the 	rights 	or
	be 	covered
	by 	any
	provision
	ordefinition 	established
by
	th 	chapter."
	Thus, 	even
	ass
that
	the 	charging 	party 	could
	state
	a
	prima
	facie
	case
	thatthere
	had been
	a
	denial 	of 	the 	right 	to 	represent
	its
	supervisory
employee 	members,
	that 	right
	would
not
	be 	enforceable 	through
the 	unfair 	practice 	provisions 	of 	the
	SEER.A.
	Therefore, 	the
PERE
	lacks
	j
	diction
	over 	the 	alleged	n 3522.4 violation,	
section
	3522.4
	o
	ion,and
	this 	aspect 	of 	the 	unfair 	prac 	ce ismissed.	
srnissed.
Finally, 	the 	charging 	party 	asserts
	a
	elation 	ofsection
	3528
	in 	that
	it
	has 	been 	denied 	the 	ght 	to 	represent
its
	managerial 	and
	confidential
	employee 	members.
	Section
	3528,
as 	noted 	previously, 	is 	contained 	in 	the
	George 	Brown
Act. 	That
Act
	is 	codified 	as
	title
	1, 	division 	4, 	chapter 	10.5 	of 	theGovernment 	Code. 	The 	SEERA
	is 	codified 	as
	title
	1, 	division 	4,
chapter 	10.3 	of 	the 	Government 	Code. 	The 	PERB
	is 	given 	the
-2-

authority to administer the provisions of chapter 10.3 (SEERA)
by section 3513(g). There is no provision giving the PERB the
authority to administer the provisions of chapter 10.5 (George
Brown Act) . Therefore, the PERB lacks jurisdiction over the
alleged violation of section 3528, and this aspect of the
unfair practice charge is dismissed.
For the foregoing reasons, the unfair practice charge
is dismissed in its entirety with leave to amend within twenty
(20) calendar days.
This action is taken pursuant to PERB Regulation
32630 (a) .
If the charging party chooses to amend, the amended
charge must be filed with the Sacramento Regional Office of the
PERB within twenty (20) calendar days. (PERB Regulation 32630 (b).)
Such amendment must be actually received at the Sacramento
Regional Office of the PERB before the close of business (5:00 p.m.)
on October 23, 1978, in order to be timely filed. 	(PERB Regulation
32135.)
If the charging party chooses not to amend the charge,
it may obtain review of the dismissal by filing an appeal to the
Board itself within twenty (20) calendar days after service of
this Notice. 	(PERB Regulation 32630 (b) .) Such appeal must be
actually received by the Executive Assistant to the Board before
the close of business (5:00 p.m. ) on October 23, 1978, in order
to be timely filed. (PERB Regulation 32135. ) Such . appeal must
be in writing, must be signed by the charging party or its agent,
and must contain the facts and arguments upon which the appeal
is based. (PERB Regulation 32630 (b) .) The appeal must be
accompanied by proof of service upon all parties. 	(PERB
Regulation 32135, 32142 and 32630 (b).)
Dated: October 2, 1978
WILLIAM P. SMITH
General Counsel
By .
Franklin Silver
Hearing Officer
- 3-
authority
	to
	administer
	the
	provisions
	of
	chapter 	10.3
	(SEERA)
by
	section
	3513(g).
	There
	is
	no
	provision
	giving 	the
	PERB
	the
authority
	to 	administer 	the 	provisions
	of
	chapter 	10.5
	(George
Brown
	Act).
	Therefore, 	the
	PERB
	lacks
	jurisdiction
	over
	the
alleged 	violation
	of
	section
	3528, 	and
	this
	aspect
	of 	the
unfair 	practice
	charge
	is
	dismissed.
For
	the
	foregoing 	reasons, 	the
	unfair 	practice
	charge
is
	dismissed
	in
	its
	entirety
with 	leave
	to
	amend
within
	twenty
(20)
	calendar
	days.
This
	action
	is
	taken pursuant
	to
	PERB
	Regulation32630(a).
If
	the 	charging
	party
	chooses
	to
	amend,
	the
	amended
charge
	must
	be
	filed
	with 	the
	Sacramento
	Regional
	Office
	of
	the
PERB
	within
	twenty
	(20)
	calendar
	days.
	(PERB
	Regulation
	32630
(b).)
Such
	amendment
	must
	be
	actually
	received
	at
	the
	Sacramento
Regional
	Office 	of
	the
	PERB
	before 	the 	close 	of business
	(5:
00
	p.
m.)on
	October
	23, 	1978,
	in
	order 	to
	be
	timely
	filed.
	(PERB
	Regulation
32135.)
If
	the
	charging
	party
	chooses
	not 	to
	amend
	the 	charge,
may
	obtain
	review
	of 	the 	dismissal
	by
	it
	filirtg
	an
	appeal
	to 	the
Board
	itself
within
	twenty
	(20)
	calendar
	days
	after 	service 	of
this
	Notice.
	(PERB
	Regulation
	32630
(b).)
	Such
	appeal
	must 	be
actually
	received
	by
	the 	Executive
	Assistant
	to 	the
	Board
	before
the 	close 	of business
	(5:00 	p.m.)
	on
	October
	23, 	1978,
	in 	orderto
	be
	timely
	filed.
	(PERB
	Regulation
	32135.)
	Such.appeal
	must
be
	in writing,
	must 	be
	signed
	by
	the 	charging
	party 	or
	its
	agent,
and 	must
	contain 	the 	facts
	and 	arguments
	upon
	which
	the 	appeal
is
	based.
	(PERB
	Regulation
	32630(b)
.)	
The	
appeal
	must
	be
accompanied by
	proof 	of 	service
	upon
	all 	parties.
	(PERB
Regulation
	32135,
	32142
	and
	32630(b).)
Dated: 	October
	2, 	1978 
WILLIAM
	P.
	SMITH
General 	Counsel
By 	.
-3-
Franklin 	SilverHearing Officer