State of California (Department of Corrections) (PERB 0732S)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA CORRECTIONAL 	PEACE
OFFICERS ASSOCIATION,
Charging 	Party,
v.
STATE OF CALIFORNIA, 	DEPARTMENT
OF CORRECTIONS,
Respondent.
)
)
)
) 	Case No. 	S-CE-372-S
PERB 	Decision No. 	732-S
May 	3, 	1989
)
)
)
)
)
)
)
Appearances: 	Shawn P. 	Cloughesy, 	Legal Counsel, 	for the
California Peace Officers Association; 	Department 	of 	Personnel
Administration by Roy J. 	Chastain, 	Labor Relations Counsel, 	for
the State of California, 	Department of Corrections.
Before Hesse, 	Chairperson; 	Porter, 	Craib, 	Shank and Camilli,
Members.
DECISION AND 	ORDER
This 	case 	is 	before the Public 	Employment Relations 	Board
(Board) 	on appeal 	by the 	charging party of 	the 	Board 	agent's
dismissal, 	attached hereto, 	of its charge that the respondent
violated 	section 3519.5(a) 	and 	(b) 	of the Ralph C. 	Dills Act
(Act). 	Subsequent to this 	filing, 	the California Correctional
Peace 	Officers 	Association requested that 	the appeal 	be
withdrawn. 	The 	Board has 	considered the request and 	concurs 	that
such a withdrawal 	is 	in the best 	interest of 	the parties 	and 	is
consistent with the Act. 	(Gov. 	Code, 	secs. 	3512 et seq.)
It 	is 	hereby ORDERED that 	the 	appeal 	of 	the Board agent's
decision in Case No. 	S-CE-372-S 	is WITHDRAWN WITH PREJUDICE.
By the 	BOARD
__)

STATE OF CALIFORNIA 	GEORGE DEUKMEJIAN. Governor
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
Headquarters Office
1031 18th Street
Sacramento, CA 	95814-4174
(916) 322-3088
October 17, 	1988
Shawn P. 	Cloughesy
Legal 	Counsel
California 	Correctional 	Peace 	Officers
Association
3780 Rosin Court, 	Suite 200
Sacramento, 	CA 95834
Re: 	California 	Correctional 	Peace Officers Association v.
State of California. 	Department of Corrections
Unfair 	Practice Charge no. 	S-CE-372-S
DISMISSAL 	and Refusal 	to 	Issue Complaint
Dear Mr. 	Cloughesy:
The 	above-referenced 	case 	alleges 	that 	the 	State 	of 	California,
California 	Department of 	Corrections 	(State) 	discriminated
against 	DeAnna 	Hudson because 	of 	her 	involvement 	in conduct
protected by the Ralph C. 	Dills Act. 	This conduct 	is 	alleged
to violate sections 	3519(a) 	and 	(b) 	of the Dills Act.
I 	indicated 	to you 	in my 	attached 	letter dated 	September 	23,
1988 	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 	are 	further 	advised that 	unless you
amended 	the charge or withdrew it prior 	to September 	29, 	1988,
it would be dismissed. 	On September 	28, 	you requested 	and 	I
approved 	an extension of 	time 	in which to 	file 	an 	amended
charge. 	On September 30, 	the first 	amended charge was 	filed.
The 	first 	amended charge 	is 	identical 	to 	the original 	charge
with the exception of two 	additional 	statements. 	First, 	the
California 	Correctional 	Peace Officers 	Association 	(CCPOA)
contends 	that Lake Elsinore School District 	(1987) 	PERB
Decision No. 	646 	should not 	apply to 	this 	unfair 	practice
charge 	since 	the 	Fourth District 	Court 	of Appeal 	decision did
not 	become 	final 	until 	after this 	charge was 	filed. 	Second,

Shawn P. 	Cloughesy
October 17, 	1988
Page 	2
deferral 	to 	arbitration 	of 	this 	charge would 	be 	inappropriate
because 	section 	5.03 	of 	the Memorandum of 	Understanding 	(MOU)
between CCPOA and 	the 	State of 	California does 	not 	prevent 	an
employee 	from 	filing 	a 	discrimination 	action with 	the 	Public
Employment Relations Board 	(PERB).
With 	respect 	to 	the 	first 	argument, 	Lake Elsinore 	School
District, 	supra, 	was 	issued by PERB on December 18, 	1987. 	This
charge was 	filed on February 16. 	1988, 	some three months
later. 	The basic 	assertion of 	this 	charge 	is 	that DeAnna
Hudson was 	discriminatorily denied 	a 	position 	as 	Parole Agent
II 	in 	the 	Fresno 	office 	This 	denial 	occurred 	between November
9 	and 23, 	1987. 	The grievance procedure allows 	an employee 	15
days 	from date 	of 	discovery to 	file 	a 	timely grievance. 	There
was 	no 	reason offered for 	the 	failure 	of 	the 	charging party to
file 	a 	timely grievance. 	Neither 	the Lake Elsinore nor 	the Dry
-
Creek 	standards 	prevented 	the 	filing 	of 	a 	timely grievance.
The 	fact 	that 	such 	a 	grievance was 	not 	filed does 	not 	relieve
the PERB of 	its 	obligation 	to 	follow the 	statute.
CCPOA's 	assertion that 	an employee has 	an election of 	options
to make under 	section 5.03 	of 	the MOU is 	correct. 	However, 	the
jurisdictional 	standard 	stated 	in the Lake Elsinore, 	supra,
requires 	deferral 	to 	arbitration 	in situations where the
conduct 	complained 	of 	in the unfair 	practice 	is 	covered by a
contract or MOU which ends 	in binding 	arbitration. 	Thus, 	it
would 	apply in a 	situation 	such 	as 	this where 	submission of 	the
dispute 	to 	binding 	arbitration is 	an option. 	Essentially,
CCPOA 	argues 	that 	the 	individual 	employee's 	determination 	that
he/she wishes 	to 	have 	the dispute 	resolved 	by PERB can confer
jurisdiction on PERB. 	As explained in Lake Elsinore, 	supra, 	at
page 19, 	". 	. 	• where this Board is without jurisdiction, 	it
cannot 	acquire jurisdiction by the parties' 	consent, 	agreement,
stipulation or 	acquiescence, 	nor by waiver or estoppel."
(citations omitted) 	Therefore, 	it would be inappropriate 	for
PERB 	to 	assert 	jurisdiction in the presence of 	such a clause.
Charging Party also wrote me a 	letter on October 	12, 	1988
arguing 	that 	deferral was 	inappropriate 	in this 	case 	for
essentially the same reason as discussed above. 	That 	is, 	if
the employee chose 	to go 	to PERB 	then the option of 	binding
arbitration would 	be 	foreclosed 	and 	deferral 	would 	be
inappropriate. 	A close 	examination of MOU 	section 	5.03 	does
not 	support 	this 	scenario. 	If 	the employee chooses 	to go 	to
PERB 	this 	is 	not 	an 	irreversible decision. 	Rather 	section 	5.03
requires 	only that 	...[i]n either case, 	there 	shall 	only be one
bite of 	the apple 	and a decision 	in one 	forum shall 	act 	as
collateral 	estoppel 	in the other 	forum, 	except 	if 	one 	forum
defers 	to the other." 	(emphasis 	added). 	The MOU itself
appears 	to 	anticipate 	the possibility that 	deferral would 	be

Shawn P. 	Cloughesy
October 17, 	1988
Page 3
appropriate. 	Thus, 	it 	appears 	that the parties could switch
from PERB 	to 	binding 	arbitration. 	This 	argument does 	not 	bar
deferral of 	this case.
Accordingly, 	this 	charge must 	be dismissed as deferred to
arbitration.
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
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.) 	or 	sent by telegraph, 	certified or Express United
States 	mail 	postmarked no 	later 	than the 	last 	date 	set 	for
filing 	(California Administrative Code, 	title 	8,
section 32135). 	Code of Civil Procedure section 1013 	shall
apply. 	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
(California Administrative Code, 	title 8, 	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 California
Administrative Code, 	title 8, 	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

Shawn P. 	Cloughesy
October 17, 	1988
Page 4
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 	(California Administrative Code, 	title 8, 	section 32132).
Final 	Date
If 	no 	appeal 	is 	filed within the 	specified time 	limits, 	the
dismissal will 	become 	final when the 	time 	limits 	have 	expired.
Sincerely,
CHRISTINE A. 	BOLOGNA
General 	Counsel
By Robert 	Thompson
Deputy General 	Counsel
Attachment
cc: 	Roy J. 	Chastain
5436d

STATE OF CALIFORNIA 	GEORGE DEUKMEJIAN, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
1031 18th Street, Room 102
Sacramento, CA 	95814-4174
(916) 322-3198
September 23, 	1988
Shawn P. 	Cloughesy
Legal 	Counsel
California 	Correctional 	Peace Officers
Association
3780 Rosin Court, 	Suite 200
Sacramento, 	CA 95834
Re: 	California 	Correctional 	Peace Officers Association v.
State of California. 	Department 	of Corrections
Unfair 	Practice Charge no. 	S-CE-372-S
WARNING 	LETTER
Dear Mr. 	Cloughesy:
The 	above-referenced case 	alleges 	that 	the State 	of California,
California Department of Corrections 	(State) 	discriminated
against 	DeAnna 	Hudson because of 	her 	involvement 	in conduct
protected by the Dills Act. 	This 	conduct 	is 	alleged to violate
sections 3519(a) 	and 	(b) 	of the Dills Act.
My 	investigation 	revealed 	the 	following 	facts: 	DeAnna 	Hudson
has 	been a 	Parole Agent with the Department of 	Corrections 	for
the past 	16 	to 	17 years. 	She became the first 	job steward 	for
the 	California 	Correctional 	Peace Officers 	Association 	(CCPOA)
at 	the 	Fresno Parole Office 	in approximately January, 	1986.
She 	participated 	as 	a member 	of 	the CCPOA negotiating 	team from
January 1987 through July of 	1987. 	On April 27, 	1987,
Ms. 	Hudson 	filed 	an unfair 	practice charge 	against 	the
Department 	of 	Corrections 	concerning 	alleged 	reprisals 	taken 	by
Cynthia Tigh and Jack Payne. 	In the Fall of 	1987, 	Ms. 	Hudson
applied 	for 	an open position of 	Parole Agent 	II 	at 	the Fresno
Unit Office. 	She was 	interviewed on November 	9, 	1987 by a
panel which included Ms. 	Tigh and Mr. 	Payne. 	She was assigned
to 	an 	acting 	assistant 	unit 	supervisor 	(Parole Agent 	II)
position on November 26, 	1987. 	She 	remained 	in this position
until 	January 4, 	1988 	at which time 	another 	individual was
assigned permanently to 	the position. 	Ms. 	Hudson alleges 	that
she was 	not 	hired 	for 	the 	permanent 	position because of 	her

Shawn P. 	Cloughesy
September 23, 	1988
Page 	2
previous 	participation 	in CCPOA activities 	as well 	as 	the
filing 	of 	a unfair 	practice charge with PERB.
Ms. 	Hudson's position is part of bargaining unit 	6 which is
exclusively 	represented 	by the CCPOA. 	The 	State 	and CCPOA 	are
parties 	to 	a Memorandum of Understanding 	(MOU) 	which 	includes
Article 5.03, 	which reads:
Protected 	Activity.
The 	State 	and 	the union shall 	not 	impose or
threaten 	to 	impose 	reprisals 	on employees,
to discriminate 	or 	threaten 	to 	discriminate
against 	employees 	or 	otherwise 	to 	interfere
with, 	restrain or coerce employees 	because
of 	their 	exercise of 	rights 	guaranteed by
the 	State 	Employer-Employee 	Relations 	Act
(SEERA).
Requested 	remedy 	for 	violation of 	this
section 	shall 	either 	be 	through 	the 	Public
Employment Relations 	Board 	(PERB) 	or 	through
the 	arbitration 	procedure 	contained 	in 	this
Agreement. 	In either case, 	there shall only
be one bite of 	the 	apple 	and 	a decision 	in
one 	forum shall 	act 	as 	collateral 	estoppel
in the other forum, 	except 	if one 	forum
defers 	to 	the other.
Article 	6.02 	of 	the MOU defines 	grievance 	as 	"any dispute 	of
one 	or more 	employees 	or 	a 	dispute 	between CCPOA 	and 	the 	State
involving 	the 	interpretation, 	application or 	enforcement 	of 	the
provisions of 	this Agreement, 	or 	involving a 	law, 	policy or
procedure 	concerning 	employment-related matters 	not 	covered 	in
this Agreement 	and 	not 	under 	the 	jurisdiction of 	the 	State
Personnel Board 	(SPB)." 	The final 	step of 	the grievance
procedure 	is 	submission of 	the dispute 	to 	an 	arbitrator whose
decision on 	the matter 	is 	final 	and binding.
Section 3514.5(a)(2) 	of the Dills Act states, 	in pertinent part,
that PERB,
shall not. 	. 	. 	issue a complaint against
conduct 	also 	prohibited 	by the 	provisions 	of
the. 	. 	. 	[collective bargaining agreement in
effect] 	between the parties until 	the
grievance machinery of the agreement, 	if 	it
exists 	and covers 	the matter at 	issue, 	has
been 	exhausted 	either 	by 	settlement 	or
binding 	arbitration.
In Lake Elsinore School District 	(1987) 	PERB Decision No. 	646,
PERB 	held 	that 	section 	3541.5(a) 	of 	the Educational 	Employment
Relations Act, 	which contains 	language 	identical 	to

Shawn P. 	Cloughesy
September 23, 	1988
Page 3
Section 3514.5(a) 	of the Dills Act, 	established 	a 	jurisdictional
rule 	requiring 	that 	a 	charge be dismissed 	and deferred 	if: 	(1)
the grievance machinery of 	the 	agreement 	covers 	the matter 	at
issue and culminates 	in binding arbitration; 	and, 	(2) 	the conduct
complained 	of 	in 	the unfair 	practice 	charge 	is 	prohibited by the
provisions 	of 	the 	agreement 	between the parties. 	PERB Rule
32620(b)(5) 	(California Administrative Code Section 	32620(b)(5))
also 	requires 	the 	investigating 	board 	agent 	to 	dismiss 	a 	charge
where 	the 	allegations 	are 	properly deferred 	to 	binding
arbitration.
These standards 	are met with respect 	to this case. 	First, 	the
grievance machinery of 	the MOU covers 	the dispute 	raised by the
unfair 	practice 	charge 	and 	culminates 	in binding 	arbitration.
Second, 	the conduct 	complained of 	in this 	charge 	that 	the State
has discriminated 	against Ms. 	Hudson based on her 	protected
activities 	is 	prohibited by Article 	5.03 	of 	the MOU. 	This
section 	essentially parallels 	the 	protections 	provided 	by 	the
Ralph C. 	Dills Act.
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 PERB Regulation 32661 	(California Administrative
Code, 	title 8, 	section 32661; 	Los Angeles Unified School District
(1982) 	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 	unde-r 	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
September 29, 	1988, 	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
Deputy 	General 	Counsel
5271d