State of California (Department of Personnel Administration) (PERB 0600S)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA 	STATE 	EMPLOYEES'
ASSOCIATION,
Charging 	Party,
v.
STATE OF 	CALIFORNIA 	(DEPARTMENT
OF PERSONNEL ADMINISTRATION),
Respondent.
)
)
)
) 	Case 	No. 	S-CE-291-S
PERB 	Decision 	No. 	600-S
December 	24, 	1986
)
)
)
)
)
)
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Appearances: 	Bradley G. 	Booth, 	Attorney 	for 	California 	State
Employees' Association.
Before Hesse, 	Chairperson; 	Morgenstern, 	Burt and Porter,
Members.
DECISION
BURT, 	Member: 	This 	case 	is before 	the 	Public Employment
Relations 	Board 	(Board) 	on 	appeal 	by Charging 	Party of 	the
Board agent's 	dismissal, 	attached hereto, 	of 	its 	charge
alleging 	that 	the 	State 	of 	California 	(Department 	of 	Personnel
Administration) 	violated 	section 	3519(a) 	and 	(b) 	of 	the 	State
Employer-Employee Relations act 	(Gov. 	Code sec. 	3512 et seq.).
We have 	reviewed 	the 	dismissal 	and, 	finding 	it 	free 	from
prejudicial 	error, 	adopt 	it as 	the 	Decision of 	the Board
itself.1
1Member 	Porter 	would 	disavow 	the 	Board 	agent's 	discussion
of 	United Aircraft 	Corporation, 	infra.
(
e	 ••
.

ORDER
The 	unfair 	practice 	charge 	in 	Case 	No. 	S-CE-291-S 	is hereby
DISMISSED without prejudice 	to 	the 	Charging 	Party's 	right 	to
seek 	repugnancy 	review by 	the 	Board 	after 	arbitration.
Chairperson 	Hesse 	and 	Member 	Porter 	joined 	in 	this 	Decision.
Morgenstern, 	Member, 	dissenting: 	I would reverse 	the
dismissal 	and 	issue 	a 	complaint.
/

STATE Of CALIFORNIA 	. 	GEORGE DEUKMEJIAN, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
SACRAMENTO REGIONAL OFFICE
1031 18TH STREET. SUITE 102
SACRAMENTO. CALIFORNIA 	93814
(916) 322-3198
September 	3, 	1986
Bradley G. 	Booth
Attorney-
California 	State 	Employees 	Association
1108 	0 	Street
Sacramento, 	CA 	95814
Re: 	California 	State Employees Association v. 	Department 	of
Personnel 	Administration
Unfair 	Practice 	Charge No. 	S-CE-291-S
Dear Mr. 	Booth:
The 	above-referenced 	charge 	alleges 	that 	the 	Department 	of
Personnel Administration, 	Department 	of 	Corrections 	and
California 	Youth Authority 	(State) 	has 	refused 	to 	grant 	access
to 	a 	California 	State Employees Association 	(CSEA) 	labor
relations 	representative. 	This 	conduct 	is 	alleged 	to 	violate
sections 	3519(a) 	and 	(b) 	of 	the State Employer-Employee
Relations Act 	(SEERA).
I 	indicated 	to 	you 	in my 	attached 	letter 	dated August 	21, 	1986
that 	the 	above-referenced 	charge was 	subject 	to 	deferral 	to
arbitration. 	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 	accordingly. 	You were 	further 	advised 	that 	unless 	you
amended 	the charge or withdrew it 	prior 	to August 	28, 	1986, 	it
would 	be 	dismissed.
I 	have 	not 	received 	either 	a 	request 	for 	withdrawal 	or 	an
amended 	charge 	and 	am 	therefore 	dismissing 	the 	charge 	based 	on
the 	facts 	and 	reasons 	contained 	in my August 	21 	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 	(California Administrative
-·. 	··-- ---- 	- 	--- 	---

Bradley G. 	Booth
S-CE-291-S
September 3, 	1986
Page 2
Code, 	title 8, 	section 32635(a)). 	To be timely filed, 	the
original 	and five copies 	of 	such appeal must be 	actually
received by the Board 	itself 	before 	the close of 	business
(5:00 p.m.) on September 23, 	1986, 	or sent by telegraph,
certified or Express United States mail 	postmarked not 	later
than September 23, 	1986 	(section 32135). 	The Board's address
is:
Public Employment Relations 	Board
1031 18th Street
Sacramento, CA 95814
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
calendar days 	following 	the date of 	service of 	the appeal
(section 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 	section 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.
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 calendar days 	before the
expiration of 	the time 	required 	for 	filing 	the document. 	The
request must 	indicate good cause for 	and, 	if known, 	the
position of 	each other 	party 	regarding 	the extension, 	and 	shall
be 	accompanied by proof 	of 	service 	of 	the 	request upon each
party (section 32132).

Bradley G. 	Booth
S-CE-291-S
September 	3, 	1986
Page 3
Final 	Date
If 	no 	appeal 	is 	filed within 	the 	specified 	time 	limits, 	the
dismissal 	will 	become 	final 	when 	the 	time 	limits 	have 	expired
Sincerely,
JEFFREY 	SLOAN
General 	Counsel
By
Robert 	Thompson
Regional 	Attorney
Attachment
5867d

STATE Of CALIFORNIA 	GEORGE DEUKMEJIAN, Governor
PUBLIC EMPLOYMENT 	RELATIONS BOARD
HEADQUARTERS OFFICE
1031 18TH STREET
SACRAMENTO. CALIFORNIA 	95814
(916) 323-3068
August 21, 	1986
Bradley G. 	Booth
Attorney
California 	State Employees Association
1108 O Street
Sacramento, 	CA 	95814
Re: 	California 	State Employees Association v.
Department 	of 	Personnel 	Administration
Unfair 	Practice Charge No. 	S-CE-291-S
Dear Mr. 	Booth:
The 	above-referenced charge 	alleges 	that 	the Department 	of
Personnel Administration, 	Department of Corrections 	and
California Youth Authority 	(State) 	has 	refused 	to 	grant 	access
to 	a California 	State Employees Association 	(CSEA) 	labor
relations 	representative. 	This conduct 	is 	alleged to violate
sections 	3519(a) 	and 	(b) 	of the State Employer Employee
Relations Act (SEERA).
My 	investigation 	revealed 	the 	following 	facts. 	On
July 9, 	1986, 	several members of their staff, 	including
Senior 	Labor 	Relations Representative Elizabeth A. 	Russo,
toured Soledad State Prison. 	During the tour, 	Ms. 	Russo
observed 	inmates 	in two 	separate 	classrooms 	and discussed 	the
issue of 	class 	size with these 	inmates. 	During 	these
discussions 	the 	inmates 	asked what 	CSEA could 	do 	for 	them 	and
Ms. 	Russo 	replied 	that CSEA represented employees, 	that 	it was
unable 	to 	represent 	inmates 	and 	that 	any complaints 	they had
should go 	to 	their 	own union or whatever 	means 	established 	for
the prisoners' 	use. 	Although these comments were observed by
Larry Parrish, 	supervisor of vocational 	instruction at 	the
institution, 	he did not voice any objections 	to 	them, 	nor did
he 	indicate 	displeasure 	after 	the 	statements 	had 	been made.
Shortly 	thereafter 	the CSEA 	representatives 	left 	the 	facility.

Bradley G. 	Booth
August 21, 	1986
Page 2
By 	letter dated July 21, 	1986, 	the Department of Personnel
Administration 	informed CSEA that Ms. 	Russo's conduct was
totally unacceptable 	and 	therefore 	she would 	no 	longer 	be
afforded 	access 	to 	any Department 	of 	Corrections/ Department 	of
Youth Authority 	facilities where 	inmates 	were 	present.
CSEA and 	the State 	are parties 	to 	a memorandum of 	understanding
with the effective dates of July 1, 	1985, 	through
June 30, 	1987. 	Section 2.1 of the MOU reads 	in pertinent part:
a. 	The State 	recognizes 	and 	agrees 	to
deal with designated 	stewards,
bargaining unit council members 	or CSEA
staff on the following:
(1) 	The administration of 	this
contract.
Section 2.2 of 	the MOU reads:
CSEA stewards, 	staff, 	or bargaining
unit council members may have 	access 	to
employees 	to 	represent 	them pursuant 	to
section 2.1(a) 	above. 	Access 	shall not
interfere with the work of 	the
employees. 	CSEA stewards, 	staff, 	or
bargaining 	unit 	council members 	seeking
access 	to employees must notify the
department 	head or designee 	in 	advance
of the visit. 	The department 	head or
designee may 	restrict 	access 	to 	certain
worksites or 	areas 	for 	reasons 	of
safety, 	security, or patient care,
including patient privacy; 	however,
where access is restricted, 	other
reasonable 	accommodations 	shall 	be made.
Section 5.5 of 	the MOU reads, 	in pertinent part:
a. 	The 	State 	and 	CSEA shall 	be
prohibited 	from 	imposing 	or 	threatening
to 	impose 	reprisals 	by discriminating
or 	threatening 	to discriminate 	against
employees, 	or otherwise interfering
with, 	restraining, or coercing

Bradley G. 	Booth
August 21, 	1986
Page 3
employees because of 	the exercise of
their 	rights under 	SEERA or 	any 	right
given by this agreement. 	The
principals 	of 	agency shall 	be 	liberally
construed.
The grievance procedure contained 	in the MOU ends 	in 	submission
of 	the dispute 	to 	final 	and 	binding 	arbitration.
Based on 	the 	facts 	stated 	above 	and section 3514.5(a) 	of 	the
SEERA, 	this charge must be dismissed 	and deferred 	to
arbitration under 	the MOU.
Section 3514.5(a) 	of SEERA states 	in pertinent part:
. 	. 	. 	the board shall not do either of the
following: 	. 	. . 	(2) issue a complaint
against 	conduct 	also 	prohibited 	by the
provisions 	of 	the 	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.
PERB Regulation 32620(b)(5) 	(California Administrative Code,
title 	8) 	requires 	the board 	agent processing 	the charge to
"(d)ismiss 	the charge or 	any part thereof 	as 	provided 	in
Section 32630 if 	. 	. 	. 	it is determined that a complaint may
not be 	issued 	in 	light of Government Code 	sections 	3514.5,
3541.5 	or 	3563.2 or because 	a dispute 	arising under HEERA 	is
subject 	to 	final 	and 	binding 	arbitration." 	In Dry Creek Joint
Elementary School District 	(7/21/80) 	PERB Order No. 	Ad-81a, 	the
Public Employment Relations 	Board 	(PERB) 	explained 	that:
[W]hile 	there is 	no 	statutory deferral
requirement 	imposed 	on 	the National 	Labor
Relations Board 	(hereafter NLRB), 	that
agency 	has 	voluntarily 	adopted 	such 	a 	policy
both with 	regard 	to 	post-arbitral 	and
pre-arbitral 	award 	situations. 	(Footnote
omitted.) 	EERA section 3541.5(a)
essentially 	codifies 	the 	policy developed 	by

Bradley G. 	Booth
August 21, 	1986
Page 4
the NLRB 	regarding deferral 	to 	arbitration
proceedings and awards. 	It is appropriate,
therefore, 	to look for guidance to the
private 	sector. 	(Footnote 	to Fire Fighters
Union v. 	City of Vallejo 	(1974) 	12 Cal.3d
608.)
Although this case 	arose under 	the Educational 	Employment
Relations Act 	(EERA), 	it is equally applicable to cases under
SEERA as 	sections 3541.5(a) 	of 	the EERA and 3514.5(a) 	of the
SEERA are 	identical.
In Collyer Insulated Wire 192 NLRB 837, 	77 LRRM 1931 	(1971) 	and
subsequent cases, 	the NLRB articulated 	standards under which
deferral 	is appropriate in prearbitral 	situations. 	These
requirements are: 	(1) 	the dispute must arise within a 	stable
collective bargaining 	relationship where 	there 	is 	no 	enmity by
the 	respondent toward the charging party; 	(2) 	the 	respondent
must 	be 	ready 	and willing 	to 	proceed 	to 	arbitration 	and must
waive contract-based procedural defenses; 	and 	(3) 	the contract
and 	its meaning must 	lie at the center of 	the dispute.
These standards are met with respect to this case. 	First, 	no
evidence has been produced to 	indicate that 	the parties 	are not
operating within 	a 	stable collective bargaining 	relationship.
Second, 	by the 	attached document 	from 	its 	representative,
Edmund K. 	Brehl, 	Esq., dated August 6, 	1986, 	the Respondent has
indicated 	its willingness 	to proceed to 	arbitration 	and to
waive all procedural defenses. 	Finally, 	the issue 	raised by
this charge that 	the State 	refused to grant 	access 	to 	a CSEA
representative directly 	involves 	an 	interpretation of 	sections
2.1, 	2.2, 	and 5.5 of the MOU. 	Resolution of the contractual
issues 	by 	an arbitrator will 	resolve the question of whether
the 	state has 	interfered with the access 	rights 	of 	CSEA.
Charging 	Party 	argues 	that 	this 	case cannot 	be deferred 	to
arbitration because 	it would be 	futile under 	SEERA 	section
3514.5 which reads 	in pertinent part, 	"However, 	when the
charging 	party demonstrates 	that 	resort 	to 	contract 	grievance
procedure would be 	futile, 	exhaustion shall not 	be necessary."
In 	support 	of 	this 	argument Charging Party submitted 	a
declaration from its 	attorney, 	Bradley G. 	Booth, 	which states
that 	in his experience the State has 	never 	adhered to 	the
timelines 	contained 	in the Memoranda 	of 	Understanding 	related

to 	the holding of 	expedited 	arbitrations. 	He cites 	to 	three
grievances which took between 	four 	and 	fourteen months 	to 	reach
an expedited arbitration. 	This 	fact 	alone 	is 	insufficient 	to
demonstrate that 	resort 	to 	arbitration 	is 	futile. 	Limited
research 	has 	not 	developed 	any case 	law under 	either 	the 	PERB
or 	the National Labor Relations 	Board which would 	support 	a
finding 	that 	such a delay in the processing of 	grievances 	to
arbitration constitutes 	futility. 	When questioned 	on 	this
point, 	Charging Party cited to Packerland Packing Co. 	(1975)
216 NLRB No. 	128 	[88 LRRM 1488]. 	Examination of this case
reveals 	that 	the NLRB deferred 	to 	arbitration 	an unfair
practice 	charge concerning 	retaliation despite 	the charging
party's 	argument 	that 	such would be 	futile. 	The 	futility
argument was based 	on the contentions 	that 	the employer 	had
been the 	respondent 	in a previous NLRB complaint, 	delayed or
refused 	to comply with two prior 	arbitration awards, 	and had
filed 	a 	state court civil 	action against 	the charging 	party.
The NLRB, 	relying on the test 	set 	forth 	in United Aircraft
Corporation (1973) 	204 NLRB No. 	133 	[83 LRRM 1411] 	found that
this 	evidence 	"is 	not 	sufficient 	either 	alone or 	together with
the 	other evidence 	in the 	record 	to establish that 	requiring
the parties 	to submit 	their present dispute to 	the contract
grievance 	arbitration procedure will 	be either unpromising 	or
futile."
Bradley G. 	Booth
August 21, 	1986
Page 5
In United Aircraft Corporation, 	supra, 	the NLRB stated:
It is true that in Collyer, 	supra, we noted,
as one of 	the factors 	supporting our
decision to defer to the parties' 	available
grievance 	and arbitration machinery, 	that
there had been 	a 	long 	relationship between
the company and the union 	and 	a 	lack of 	any
employer hostility towards unions 	in
general. 	We continue to believe that 	an
exploration of 	the nature of 	the
relationship between 	the 	parties 	is 	relevant
to the question of whether 	in a particular
case we ought 	or ought 	not defer
contractually resolvable 	issues 	to the
parties' 	own machinery. 	Where the facts
show a 	sufficient degree of hostility,
either on the 	facts 	of 	the case at bar 	alone
or 	in the 	light of 	prior unlawful conduct of

which 	the 	immediate dispute may fairly be
said to be simply a continuation, 	there is
serious 	reason 	to 	question whether we ought
defer 	to 	arbitration.
Bradley G. 	Booth
August 21, 	1986
Page 6
However, 	the nature and scope of 	the acts
currently 	alleged 	to 	show such hostility,
together with a measure of 	the current
impact of 	any past 	such acts, 	must all be
evaluated 	and 	then 	together 	be weighed
against 	evidence 	as 	to the developing or
maturing 	nature 	of 	the parties'
collective-bargaining 	relationship 	and 	the
proven effectiveness 	(or 	lack thereof) 	of
the 	available 	grievance 	and 	arbitration
machinery. 	Upon a 	totality of 	those facts,
it must 	then be determined whether the
parties' 	agreed-upon grievance and
arbitration machinery can 	reasonably be
relied 	on 	to 	function properly 	and 	to
resolve 	the 	current disputes 	fairly.
If the conduct here complained of, 	viewed 	in
the context 	of 	serious past unlawful
conduct, 	appears to establish a continuing
pattern of 	efforts 	to defeat 	the purposes 	of
our Act then, 	particularly if 	the evidence
also 	should 	indicate that the parties, 	own
machinery 	is either untested or 	not
functioning 	fairly and smoothly, 	it would
seem obvious 	that 	we could 	not 	reasonably
rely on the parties' 	voluntary machinery
fairly 	and 	promptly to 	resolve 	the
underlying problem. 	In such a 	situation,
therefore, 	the Act's purposes could best be
served 	by our 	taking 	jurisdiction 	in the
first 	instance.
But if, 	on the contrary, 	there is now
effective 	dispute-solving 	machinery
available, 	and if the combination of past
and presently 	alleged misconduct 	does 	not
appear 	to be of 	such character 	as 	to 	render
the use of 	that machinery unpromising 	or
I

Bradley G. 	Booth
August 21, 1986
Page 7
futile, 	then we ought 	not depart 	from our
usual deferral policies.
The fact 	in this case that 	it 	takes four 	to fourteen months 	to
get 	to 	an arbitration does 	not demonstrate that 	the 	resort 	to
the grievance 	arbitration machinery 	is unpromising 	or 	futile.
Accordingly, 	this 	charge must 	be deferred to 	arbitration and
will be dismissed. 	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 SEERA section 3514.5; 	Board Rule 32661;
Los Angeles Unified 	School 	District 	(6/30/82) 	PERB Decision
No. 	218; Dry Creek Joint Elementary School District, 	supra.
If you feel 	that 	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 	accordingly. 	This 	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 must 	be 	filed with
PERB. 	If 	I do not 	receive an amended charge or withdrawal 	from
you before August 28, 	1986, 	I 	shall dismiss your charge without
leave to amend. 	If you have any questions on how to proceed,
please call me at 	(916) 	322-3198.
Sincerely,
Robert 	Thompson
Regional Attorney
Attachment
5626d

5
10
15
20
25
1 The 	employer 	is willing 	to 	arbitrate 	and will 	waive
any 	contractually-based 	procedural 	defenses 	if 	a 	prima 	facie
case 	is 	found and 	the matter 	is deferred to arbitration. 	This
is 	the practice 	in the private sector. 	(Bunker Hill Company
(1973) 	208 NLRB No. 	17, 	85 LRRM 1264; 	Southwestern Bell
Telephone Company 	(1974) 	212 NLRB No. 	10, 	87 LRRM 1446; 	Raymond
International, 	Inc. 	(1975) 	218 NLRB No. 	39, 89 LRRM 1461; 	Pilot
Freight Carriers 	(1976) 	224 NLRB No. 	46; 	92 LRRM 1338; 	U.S.
Postal Service 	(1976) 	225 NLRB No. 	33, 	93 LRRM 1089; 	Southern
Florida Hotel and Motel Association 	(1979) 	245 NLRB No. 	49, 	102
LRRM 	1578.)
2
3
4
6
7
8
9
11
12 The State employer 	submits 	that SEERA § 	3514.5(a) 	was
not 	intended by 	the California Legislature 	to codify 	the
changing policies developed by 	the NLRB 	in 	its 	own 	case 	law
regarding 	deferral 	to 	grievance-arbitration proceedings 	and
awards. 	Moreover, 	the 	federal precedents requiring 	the waiver
of 	defenses 	do not 	apply 	to 	the 	State 	employer 	because 	of 	the
specific statutory deferral language of § 3514.5(a). 	Yet, 	it
is 	not 	necessary 	to test 	this position at the present 	time.
While preserving 	its position, 	the State Employer 	is willing,
in 	this particular 	case only, 	to waive 	timeliness 	and
procedural 	defenses 	that may 	rise 	in 	the grievance 	should 	PERB
determine 	a prima 	facie 	showing 	has 	been made by 	the 	charging
party.
13
14
16
17
18
19
21
22
23
24
In Collyer 	Insulated Wire 	(1971) 	192 NLRB 337, 	77
LRRM 1931, 	and subsequent cases, 	the NLRB articulated standards
under 	which deferral 	is appropriate 	in prearbitral
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27
URT PAPER
TE OF CALIFORNIA
. 113 IREV. 6.721
7. 	Attachment pg. 	1
UIIIT PAi-£R
,TII.,, CALIPDIIN1 ..
>- IIS 1•1:11 .•. 7;t1

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10
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1 nonadmission 	to prison 	sites where 	prisoners 	are 	located 	at
present 	would 	irreparably 	harm 	the 	public 	interest 	of 	assuring
peace 	in California's penal 	institutions.
2
3
4 WHEREFORE, 	it 	is urged that the 	request 	for
injunctive 	relief 	in 	the 	above-captioned matter 	must 	be
rejected 	in 	its 	entirety.
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7 DATED: 	August 	6, 	1986
8 Respectfully 	submitted,
TALMADGE R. 	JONES
Chief 	Counsel
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By
EDMUND K. 	BREHL
Labor 	Relations
Counsel
Attorneys 	for
Respondents
IT PAPER
OF CALIFORNIA
	113 (REV. 8.721
11. Attachment pg. 	2
tT PAPER
: Cl,. C,t.L1 ..o•N1•
113 ,,u:v •. ,u
...