State of California (Department of Corrections) (PERB 1136S)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
INTERNATIONAL UNION OF OPERATING
ENGINEERS, 	CRAFT-MAINTENANCE
DIVISION, 	UNIT 12,
Charging 	Party,
v.
STATE OF 	CALIFORNIA 	(DEPARTMENT
OF 	CORRECTIONS),
Respondent.
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) 	Case No. 	SF-CE-134-S
PERB Decision No. 	1136-S
January 	30, 	1996
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Appearance; 	Van Bourg, 	Weinberg, 	Roger & Rosenfeld by Stewart
Weinberg, 	Attorney, 	for International Union of Operating
Engineers, 	Craft-Maintenance Division, 	Unit 12.
Before Caffrey, 	Chair; 	Garcia and Johnson, 	Members.
DECISION
JOHNSON, 	Member: 	This 	case is before the Public Employment
Relations 	Board 	(PERB or Board) 	on appeal 	of a Board agent's
dismissal 	(attached) 	of 	an unfair practice 	charge 	filed by the
International 	Union of 	Operating Engineers, 	Craft-Maintenance
Division, 	Unit 12 	(IUOE). 	In its charge, 	IUOE alleged that the
State 	of 	California 	(Department 	of 	Corrections) 	(Department)
violated section 3519(a) 	and 	(b) 	of 	the Ralph C. 	Dills Act 	(Dills
Act)1 when it dealt directly with an employee rather than through
1The Dills Act 	is 	codified at 	Government 	Code 	section 3512
et 	seq. 	Section 3519 	states, 	in pertinent part:
It 	shall 	be unlawful 	for the 	state 	to do any
of 	the 	following:
(a) 	Impose or threaten to 	impose 	reprisals
on employees, 	to discriminate or threaten to
discriminate against 	employees, 	or otherwise

the 	exclusive 	representative.
The 	Board has 	reviewed 	the 	entire 	record 	in this 	case,
including 	the unfair practice 	charge, 	the warning and dismissal
letters, 	and 	IUOE's appeal. 	The Board finds 	the warning and
dismissal 	letters 	to be 	free 	of 	prejudicial 	error and 	therefore
adopts 	them as 	the 	decision of 	the 	Board 	itself 	consistent 	with
the 	following 	discussion.
DISCUSSION
After investigation of 	IUOE's 	charge, 	the Board agent
determined 	that 	PERB 	is 	without 	jurisdiction 	in 	this 	case 	and 	the
charge must 	be dismissed and deferred to 	the parties' 	contractual
grievance 	and arbitration procedure. 	Assuming 	PERB had
jurisdiction over the 	charge, 	the Board agent 	found that 	IUOE's
charge 	failed 	to demonstrate 	a prima 	facie violation 	of 	the
employee's 	right 	to 	representation and 	IUOE's 	right 	to 	represent
its members.
On appeal, 	IUOE 	contends 	that 	the Board agent 	erred in
finding 	that 	the matter must 	be 	dismissed 	and deferred 	to
arbitration. 	IUOE argues 	that 	the 	contract 	does not 	cover the
dispute at 	issue. 	IUOE asserts 	that 	section 5.1 	of 	the parties'
agreement 	requires 	that 	the Department 	deal 	with 	IUOE-designated
to interfere with, 	restrain, 	or coerce
employees 	because 	of 	their exercise 	of 	rights
guaranteed by this 	chapter. 	For purposes 	of
this subdivision, 	"employee" 	includes an
applicant 	for employment 	or reemployment.
(b) 	Deny to employee organizations 	rights
guaranteed 	to 	them by 	this 	chapter.
22

stewards 	on employee adverse actions, 	not business agents.2 IUOE
also argues 	that 	the Board agent 	reads 	section 21.3 	(which
prohibits 	interference, 	restraint 	or 	coercion of 	employee 	rights)
too broadly 	to 	cover the 	instant 	dispute.
In Lake 	Elsinore School District 	(1987) 	PERB Decision
No. 	646 	(Lake Elsinore), 	the Board held that section 3541.5(a) 	of
the 	Educational 	Employment 	Relations Act, 	which 	contains 	language
identical 	to Dills Act section 3514.5(a), 	established a
jurisdictional 	rule 	requiring 	that 	a 	charge be 	dismissed and
deferred to arbitration 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.
As 	correctly determined by the Board agent, 	the
Lake 	Elsinore 	deferral 	standard has been met 	in 	this 	case.
First, 	the grievance machinery provides 	for resolution of 	this
dispute and culminates 	in binding arbitration. 	Second, 	the
conduct 	complained of 	in the 	charge, 	that 	the Department 	dealt
directly with an 	employee 	concerning 	an adverse 	action 	rather
than 	the 	exclusive 	representative, 	is 	arguably prohibited by
sections 	5.1 	and 21.3. 	Section 5.1 	requires 	that 	the Department
deal 	with 	IUOE-designated 	stewards. 	IUOE alleges 	that 	the
Department 	failed 	to 	contact 	any 	IUOE 	representative when 	it
2An 	IUOE business 	agent 	represented 	the 	employee 	in 	the
"Skelly" 	hearing prior to 	the 	employee 	receiving 	the 	settlement
offer.
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presented a 	settlement 	offer directly to 	the employee. 	Clearly,
the Department's 	conduct 	is 	arguably prohibited by 	section 	5.1.
Similarly, 	section 21.3 	prohibits 	interference with employee
rights. 	IUOE's allegation that 	the Department, 	by the same
conduct, 	interfered with the 	employee's 	right 	to 	representation
is 	arguably prohibited by this provision. 	Accordingly,
the 	Lake 	Elsinore 	standard has been met. 	PERB 	is without
jurisdiction over 	this matter and 	it must 	be dismissed and
deferred 	to 	the parties' 	contractual 	grievance and arbitration
procedure.
ORDER
The unfair practice 	charge 	in Case No. 	SF-CE-134-S 	is hereby
DISMISSED WITHOUT LEAVE 	TO AMEND.
Chairman 	Caffrey 	joined 	in 	this 	Decision.
Member Garcia's 	concurrence begins 	on page 	5.
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GARCIA, 	Member, 	concurring: 	After review of this case, 	it
is my 	conclusion that 	sections 	5.1 	and 21.3 	of 	the parties'
agreement 	are 	susceptible 	to an 	interpretation 	that 	those
provisions 	cover 	the 	conduct 	alleged 	to be 	an unfair practice 	and
this 	case must be 	deferred until 	the parties 	exhaust 	their
contractual 	grievance process.
5

STATE OF CALIFORNIA 	'• 	PETE WILSON. Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Los Angeles Regional Office
3530 Wilshire Blvd., Suite 650
Los Angeles, CA 90010-2334
(213)736-3127
September 12, 	1995
Stewart Weinberg, 	Esq.
Van Bourg, Weinberg, 	Roger & Rosenfeld
180 Grand Avenue, 	Suite 1400
Oakland, 	California 	94612
Re: 	DISMISSAL AND REFUSAL TO ISSUE COMPLAINT, 	Unfair Practice
Charge No. 	SF-CE-134-S International Union of Operating
Engineers, 	Craft-Maintenance Division. 	Unit 12 v. 	State of
California 	(Department 	of 	Corrections)
Dear Mr. Weinberg:
The above-referenced charge alleges 	the Department 	of 	Corrections
(CDC) 	dealt directly with an employee rather than through the
exclusive representative, 	the International Union of Operating
Engineers, Craft-Maintenance Division, Unit 12 	(IUOE). 	The
charge alleges 	this 	conduct violated Government Code sections
3519(a) and 3519 (b) 	(Dills Act or Act).
I indicated to you, 	in my attached letter dated August 29, 	1995,
that 	the above-referenced charge did not 	state a prima facie
case. 	You were advised that, 	if there were any factual
inaccuracies or additional 	facts which would correct 	the
deficiencies explained in that letter, 	you should amend the
charge. 	You were further advised that, 	unless you amended the
charge to state a prima facie case or withdrew it prior to
September 11, 	1995, 	the charge would be dismissed.
I have not received either an amended charge or a request 	for
withdrawal. 	Therefore, 	I am dismissing the charge based on the
facts and reasons contained in my August 29, 	1995, 	letter.
Right to Appeal
Pursuant to Public Employment Relations Board regulations, 	you
may obtain a review of this dismissal of 	the charge by filing
an appeal to the Board itself within twenty 	(20) 	calendar days
after service of this dismissal. 	(Cal. 	Code of Regs., 	tit. 	8,
sec. 	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 p.m.) 	or sent by telegraph,
certified or Express United States mail postmarked no later
than the last date set for filing. 	(Cal. 	Code of Regs., 	tit. 	8,
sec. 	32135.) 	Code of Civil Procedure section 1013 shall apply.
The Board's address is:
------==------==--====- 	-

SF-CE-134-S
September 12, 	1995
Page 2
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 	(20) 	calendar
days following the date of service of the appeal. 	(Cal. 	Code of
Regs., tit. 8, sec. 32635(b).)
Service
All documents authorized to be filed herein must also be 	"served"
upon all parties to the proceeding, 	and a 	"proof of service"
must accompany each copy of a document 	served upon a party or
filed with the Board itself. 	(See Cal. 	Code of Regs., 	tit. 	8,
sec. 	32140 	for the required contents and a sample form.) 	The
document will be considered properly 	"served" 	when personally
delivered or deposited in the first-class mail, 	postage paid and
properly addressed.
Extension of Time
A request for an extension of time, 	in which to file a document
with the Board itself, 	must be in writing and filed with the
Board at 	the previously noted address. 	A request 	for an
extension must be filed at least three 	(3) 	calendar days before
the expiration of the time required for filing the document.
The request must indicate good cause for and, 	if known, 	the
position of each other party regarding the extension, 	and shall
be accompanied by proof 	of service of 	the request upon each
party. 	(Cal. Code of Regs., tit. 8, sec. 32132.)
Final Date
If no appeal is filed within the specified time limits, 	the
dismissal will become final when the time limits have expired.
Sincerely,
ROBERT THOMPSON
Deputy General 	Counsel
By Tammy L. Samsel
Board Agent
Attachment

STATE OF CALIFORNIA 	PETE WILSON. Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Los Angeles Regional Office
3530 Wilshire Blvd., Suite 650
Los Angeles, CA 90010-2334
(213) 736-3127
August 29, 	1995
Stewart Weinberg, 	Esq.
Van Bourg, 	Weinberg, 	Roger & Rosenfeld
180 Grand Avenue, 	Suite 	1400
Oakland, 	California 94612
Re: 	WARNING LETTER Unfair Practice 	Charge No. 	SF-CE-134-S
International Union of 	Operating Engineers. 	Craft-
Maintenance Division, 	Unit 	12 v. 	State of California
(Department 	of 	Corrections)
Dear Mr. 	Weinberg:
The 	above-referenced 	charge 	alleges 	the 	Department 	of 	Corrections
(CDC) 	dealt 	directly with an employee 	rather 	than 	through 	the
exclusive 	representative, 	the 	International 	Union of 	Operating
Engineers, 	Craft-Maintenance Division, 	Unit 12 	(IUOE). 	The
charge 	alleges 	this 	conduct 	violated Government 	Code 	sections
3519(a) 	and 3519(b) 	(Dills Act 	or Act). 	My investigation of 	the
charge 	revealed 	the 	following 	facts.
The 	IUOE 	is 	the 	exclusive 	representative 	of 	the Unit 	12 	employees
at 	CDC. 	The 	IUOE and the 	State 	of 	California were parties 	to a
collective bargaining agreement 	effective 	from July 	1, 	1992
through June 	30, 	1995. 	The 	collective bargaining agreement
contains 	a 	grievance 	and 	arbitration procedure which 	ends 	in
binding arbitration. 	Section 21.3 	of 	the 	agreement provides:
The 	state 	and 	IUOE 	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
employees 	because 	of 	the 	exercise 	of 	their
rights 	under 	the Dills 	Act 	or any 	right 	given
by 	this 	agreement.
Section 	5.2 	of 	the agreement 	is 	entitled 	"Representatives," 	and
it states, 	in part:

SF-CE-134-S
August 29, 	1995
Page 2
The State recognizes and agrees to deal with
IUOE-designated stewards 	on the 	following
employer-employee relations matters: 	. 	. 	.
(2) employee adverse actions;
CDC initiated an adverse action against Unit 12 member, 	Debrea
Greenfield. 	On April 25, 	1995, 	IUOE informed CDC that Greenfield
would be 	represented by 	IUOE and requested a neutral 	Skelly
officer to hear Greenfield's appeal of the adverse action. 	On
May 4, 	1995, 	IUOE's Stephanie Allan represented Greenfield during
the Skelly hearing.
Later the same day, 	Skelly officer Susan Yearwood presented
Greenfield with a proposed settlement agreement 	to the adverse
action. 	Without the counsel 	of Allan or any other IUOE
representative, 	Greenfield read and signed the document. 	The
agreement was titled Stipulated Agreement, 	and it stated:
You may consider discussing this agreement
with your representative or other counsel.
Your signature will 	signify your complete
understanding and voluntary willingness 	to
enter into this agreement.
Based on the facts provided above, 	the charge does not state a
prima facie violation of the Act within the jurisdiction of the
Public Employment Relations Board 	(PERB or Board), 	for the
following reasons.
The employer's duty to respect 	the right 	to representation does
not arise until an employee requests representation. 	California
Department of Forestry 	(1988) 	PERB Decision No. 	690-S. 	An
employee may forego his guaranteed right to representation. 	The
facts presented did not 	indicate 	that Greenfield made a request
for representation. 	The charge does not allege any facts
indicating that 	CDC refused to allow Greenfield and IUOE 	the
opportunity to communicate. 	In fact, 	the stipulated agreement
specifically informed Greenfield of her right 	to seek
representation. 	Accordingly, 	the charge as presently written
does not demonstrate a violation of Greenfield's right to
representation or the IUOE's 	right to represent.
Section 3514.5(a) 	of the Ralph C. Dills Act 	(Dills Act) 	states,
in pertinent part, 	that PERB shall not:

SF-CE-134-S
August 29, 	1995
Page 3
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 	section
3514.5(a) 	of 	the Dills Act, 	established a jurisdictional 	rule
requiring 	that 	a 	charge be 	dismissed and deferred 	if: 	(1) 	the
grievance machinery 	of 	the 	agreement 	covers 	the matter at 	issue
and culminates 	in binding arbitration; 	and, 	(2) 	the conduct
complained of 	in 	the unfair practice 	charge 	is 	prohibited by 	the
provisions 	of 	the 	agreement 	between the parties. 	PERB Regulation
32620(b)(5) 	(Cal. 	Code of Regs., 	tit. 	8, 	sec. 	32620(b)(5)) 	also
requires 	the 	investigating Board agent 	to 	dismiss 	a 	charge where
the 	allegations 	are 	properly deferred 	to 	binding 	arbitration.
These 	standards are met with respect 	to 	this 	case. 	First, 	the
grievance machinery of 	the 	agreement 	covers 	the 	dispute 	raised by
the 	unfair practice 	charge 	and 	culminates 	in binding arbitration.
Second, 	the 	conduct 	complained of 	in this 	charge 	that 	CDC denied
Greenfield's 	and 	IUOE's 	representation 	rights 	by dealing 	directly
with Greenfield 	rather 	than 	through 	the 	IUOE 	representative 	is
arguably prohibited by Article 	21.3 	of 	the 	agreement, 	which
prohibits 	such interference. 	In addition to Article 	21.3,
Article 	5.1 	includes 	language 	specifically 	addressing
representation 	rights 	in 	the 	context 	of 	employee 	adverse 	actions.
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 Reg. 	32661 	[Cal. 	Code of Regs., 	tit. 	8,
sec. 	32661]; 	Los Angeles Unified School District 	(1982) 	PERB
Decision No. 	218; 	Dry Creek Joint 	Elementary School 	District
(1980) 	PERB Order No. 	Ad-81a.)
If 	there 	are 	any 	factual 	inaccuracies 	in 	this 	letter or any
additional 	facts 	which would 	require 	a 	different 	conclusion 	than
the 	one 	explained above, 	please amend the 	charge. 	The amended

SF-CE-134-S
August 29, 	1995
Page 4
charge 	should be prepared on a 	standard PERB unfair practice
charge form clearly labeled First Amended Charge, 	contain all
the facts and allegations you wish to make, 	and be signed under
penalty of perjury by the Charging Party. 	The amended charge
must be served on the Respondent and the original proof of
service 	filed with PERB. 	If 	I do not receive an amended charge
or withdrawal from you before September 11. 	1995. 	I shall dismiss
your charge without leave to amend. 	If you have any questions,
please call me at 	(213) 	736-7508.
Sincerely,
Tammy L. 	Samsel
Board Agent