State of California (Department of Corrections) (International Union of Operating Engineers) (PERB 1149S)

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. 	S-CE-792-S
PERB Decision No. 	1149-S
April 	30, 	1996
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Appearances; 	Van Bourg, 	Weinberg, 	Roger & Rosenfeld by William
A. 	Sokol, 	Attorney, 	for International Union of Operating
Engineers, 	Craft-Maintenance Division, 	Unit 12; 	State of
California 	(Department 	of 	Personnel Administration) 	by Nalda 	L.
Keller, 	Labor Relations Counsel, 	for State of California
(Department of Corrections).
Before Caffrey, 	Chairman; 	Johnson and Dyer, 	Members.
DECISION
CAFFREY, 	Chairman: 	This 	case 	is before the Public
Employment 	Relations 	Board 	(PERB 	or Board) 	on appeal 	by the
International Union of Operating Engineers, 	Craft-Maintenance
Division, 	Unit 	12 	(IUOE) 	of a Board agent's dismissal 	(attached)
of 	its unfair practice charge. 	In its 	charge, 	IUOE alleged that
the State of California 	(Department 	of 	Corrections) 	(State)
unilaterally 	changed 	the 	work 	schedules 	of 	plant 	operations
employees 	at 	the 	California Correctional 	Women's 	Facility at
Chowchilla 	(CCWF) 	without providing 	IUOE with notice and the
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opportunity 	to meet 	and 	confer 	over 	the 	change, 	thereby violating
section 3519(b) 	and 	(c) 	of the Ralph C. 	Dills Act 	(Dills A c t ) . 1
The 	Board has 	reviewed 	the 	entire 	record 	in 	this 	case,
including 	the 	unfair practice 	charge, 	the 	warning and dismissal
letters, 	IUOE's 	appeal 	and the State's 	response 	thereto. 	The
Board 	finds 	the 	Board 	agent's 	warning 	and 	dismissal 	letters 	to 	be
free 	of 	prejudicial 	error and adopts 	them as 	the 	decision 	of 	the
Board 	itself 	in 	accordance 	with 	the 	following 	discussion.
DISCUSSION
The 	Board 	agent 	found 	that 	the 	State's 	action 	in 	changing
the work 	schedules 	of 	plant 	operations 	employees 	at 	CCWF was
allowed by the parties' 	collective bargaining agreement 	(CBA).2
1 The 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:
(b) 	Deny 	to employee 	organizations 	rights
guaranteed 	to 	them by 	this 	chapter.
(c) 	Refuse 	or 	fail 	to meet 	and 	confer 	in
good 	faith with 	a 	recognized 	employee
organization.
2 It 	should be 	noted 	that 	the 	State 	and 	IUOE 	are 	parties 	to 	a
CBA with an 	expiration date 	of 	June 	30, 	1995. 	The 	Board has 	held
that 	certain 	terms 	contained 	in 	an 	expired 	CBA 	remain 	in 	effect
until 	such 	time 	as 	bargaining 	over a 	successor agreement 	has 	been
completed 	by 	either 	reaching 	agreement 	or 	concluding 	impasse
proceedings. 	(Pajaro Valley Unified School 	District 	(1978) 	PERB
Decision No. 	51; 	State of 	California 	(Department 	of 	Forestry and
Fire 	Protection) 	(1993) 	PERB Decision No. 	999-S 	citing NLRB v.
Katz 	(1962) 	369 U.S. 	736 	[50 	LRRM 2177].) 	Therefore, 	Article 	7,
"Hours 	of Work," 	of 	the parties' 	expired CBA remained 	in effect
in November 	1995 	at 	the 	time 	of 	the 	alleged unlawful 	conduct
here. 	The parties 	do not 	dispute 	this.
22

On appeal, 	IUOE asserts 	that 	"there has been a fundamental
misunderstanding of 	this 	charge." 	IUOE argues 	that 	this 	case
does 	not 	involve 	shift 	changes, 	a subject which is addressed in
the parties' 	CBA, 	but rather 	"the unilateral 	taking away of a
benefit" 	by the State. 	That benefit, 	IUOE asserts, 	was a paid
meal 	period 	since 	the 	employee work schedule before 	the 	State's
change was 	8 	hours and included a meal period, 	whereas after the
change, 	it was 	8-1/2 	hours 	including a scheduled, 	unpaid meal
period.
In response, 	the State opposes 	IUOE's appeal and asserts
that 	its 	action was 	taken pursuant 	to 	CBA Articles 	7.1 	and 	7.3,
which were 	cited by 	the Board agent 	in his 	warning 	letter.
Article 	7.5 	states, 	in pertinent part:
7.5 	Meal 	Period
a. 	Unit 	12 	employees will 	be allowed an
unpaid meal 	period of 	not 	less 	than 30
minutes 	nor more 	than 	60 minutes which shall
be 	scheduled by 	the 	employee's 	supervisor as
near as possible 	to 	the middle 	of 	the work
shift. 	Employees 	on an unpaid meal period
normally will 	not 	be 	restricted 	to any
special 	area during the meal period. 	It
shall 	be 	the 	responsibility of 	each employee
to be 	at 	the work site 	and prepared 	to begin
work at 	the 	conclusion of 	the meal period.
c. 	Employees may be 	required to work a 	full
shift 	without 	a 	scheduled meal 	period.
Employees 	required 	to work without 	a
scheduled meal 	period may 	eat 	their meal
while performing 	their duties.
The State argues 	that 	consistent with this provision, 	the
affected 	employees 	did not 	receive 	a paid meal 	period prior 	to
the 	change, 	but 	instead worked a 	full 	8-hour shift 	during which
33

they were 	expected 	to eat 	their meal 	while working 	in accordance
with CBA Article 	7.5(c). 	Following the change, 	a 30-minute,
unpaid meal 	period was 	provided 	in accordance 	with 	CBA
Article 7.5(a). 	Therefore, 	the State asserts that 	its actions
are 	expressly permitted by the provisions 	of 	the 	contract.
The 	Board will 	find 	that 	an employer has 	committed an
unlawful 	unilateral 	change 	if: 	(1) 	the employer breached or
altered 	the parties' 	written agreement 	or established practice
concerning a matter within the scope of 	representation; 	(2) 	the
action was 	taken without 	providing 	the 	exclusive 	representative
with notice 	and 	the 	opportunity 	to meet 	and 	confer over 	the
change; 	and 	(3) 	the 	change has a generalized or continuing effect
on 	the 	terms 	and 	conditions 	of 	employment 	of bargaining unit
members. 	(Grant Joint Union High School District 	(1982) 	PERB
Decision No. 	196.)
The parties' 	CBA allows 	the 	employer to establish different
work schedules 	(sec. 	7.1(a)), 	and requires the state to provide a
15-day notice when employees' 	hours 	of work during a day are
permanently changed 	(sec. 	7.3(a)). 	The CBA also provides 	that
employees will 	be allowed an unpaid meal 	period of 	at 	least
30 minutes 	(sec. 	7.5(a)), 	but that employees may be required to
work a 	shift 	without 	a 	scheduled meal 	period provided 	that 	they
are given the 	opportunity 	to 	eat 	while performing 	their duties
(sec. 	7.5(c)).
As noted by the Board agent, 	the State's actions 	in this
case 	appear 	to be 	consistent 	with and permitted by 	these 	CBA
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provisions. 	Employees whose previous work shift 	did not 	include
a 	scheduled meal 	period were 	given at 	least 	15-day notice 	of 	a
schedule 	change 	to provide 	for a 30-minute, 	unpaid meal period.
Therefore, 	the State's actions do not breach the parties' 	written
agreement, 	and do not 	constitute an unlawful unilateral 	change.
Other than the 	assertion that 	its 	charge has been
misunderstood, 	IUOE's appeal 	fails 	to offer any response 	to the
Board agent's 	conclusion 	that 	the 	State's 	conduct 	was 	consistent
with the 	CBA, 	or provide any alternative 	to 	the unilateral 	change
analysis. 	Accordingly, 	the Board finds 	that IUOE's appeal 	is
without merit.
ORDER
The unfair practice 	charge 	in Case No. 	S-CE-792-S 	is 	hereby
DISMISSED WITHOUT LEAVE 	TO AMEND.
Members 	Johnson and Dyer joined 	in 	this 	Decision.
UT
	5

STATE OF CALIFORNIA 	• 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
1031 18th Street, Room 102
Sacramento, CA 95814-4174
(916) 322-3198
January 22, 	1996
William A. 	Sokol, 	Attorney
18 0 Grand Avenue
Oakland, 	CA 	94612
Nalda Keller, 	Counsel
Department 	of 	Personnel 	Administration
1515 	S Street, 	North Building, 	Suite 400
Sacramento, 	CA 	95814-4723
Dear Parties:
The 	above-referenced charge 	alleges 	that 	the 	State 	of 	California,
Department 	of 	Corrections 	(State) 	unilaterally changed 	the 	work
shifts 	of 	employees 	exclusively 	represented by 	the 	International
Union of Operating Engineers, 	Craft-Maintenance Division, 	Unit 	12
(UIOE). 	This conduct 	is alleged to violate sections 3519(b) 	and
(c) 	of the Ralph C. 	Dills Act.
I 	indicated to you, 	in my attached letter dated January 12, 	1996,
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
January 19, 	1996, 	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 January 12, 	1996, 	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:

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
Bernard McMonigle
Regional Attorney
Attachment
BMC:eke

STATE OF CALIFORNIA 	, 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
1031 18th Street, Room 102
Sacramento, CA 95814-4174
(916)322-3198
January 12, 	1996
William 	Sokol
Attorney
180 	Grand Avenue
Oakland, 	CA 	94612
RE: 	International Union of Operating Engineers, 	Craft-
Maintenance Division, 	Unit 	12 v. 	State of California,
(Department 	of 	Corrections)
Unfair 	Practice 	Charge No. 	S-CE-792-S
WARNING 	LETTER
Dear Mr. 	Sokol:
The 	above-referenced charge 	alleges 	that 	the 	State 	of 	California,
Department 	of 	Corrections 	(State) 	unilaterally changed 	the 	work
shifts 	of 	employees 	exclusively 	represented by 	the 	International
Union of Operating Engineers, 	Craft-Maintenance Division, 	Unit 	12
(IUOE). 	This conduct 	is alleged to violate 	sections 	3519(b) 	and
(c) 	of the Ralph C. 	Dills Act.
The 	following 	facts 	have 	been alleged 	in 	this 	case. 	IUOE 	is 	the
exclusive 	representative 	of 	employees 	in Bargaining Unit No. 	12
and 	as 	such 	had 	a 	collective 	bargaining agreement 	with 	the 	State
which expired on June 	30, 	1995. 	Article 	7.1 of 	the 	agreement
reads:
Work 	Week
a. 	The 	regular work week of 	full-time 	Unit
12 	employees 	shall be 40 	hours.
b. 	Different 	work 	schedules 	may be
established by 	the 	employer 	to meet
varying needs 	of 	state 	agencies.
Article 	7.3 	of 	the 	agreement 	provides:
Permanent 	Change of 	Shift, 	Work Hours, 	or
Work 	Days
a. 	The 	state 	shall 	provide 	15 	calendar
days' 	advance notice when an
employee's 	shift, 	hours 	of work
during a day, 	or days of work
---=----_- 	--

during the week are permanently
changed. 	Permanent means a change
lasting for 3 0 calendar days or
more. 	Shift is defined as day,
evening, 	or night. 	Work hours
means both the number of hours
worked during the day as well 	as
the starting and ending times of
the assigned work day. 	Work days
means both the number of days in
the week being worked as well as
the days of the week being worked.
This provision shall not apply to
Department 	of 	Forestry employees
when 	they changed from a 	fire
mission to a nonfire mission duty
week or vise-versa.
b. 	The State 	shall 	endeavor to provide
at least 24 hour notice to
employees of shift changes of less
than 3 0 calendar days duration.
On November 2, 	1995, 	the California Correctional Women's Facility
at 	Chowchilla notified employees 	in plant operations that 	their
work schedules were being changed, 	effective December 1995, 	from
straight eight hour shifts to eight and a half hour shifts with
an unpaid lunch of half an hour. 	On November 27, 	1995, 	Labor
Relations Officer Lloyd Bell 	told Union Representative Dennis
Bonnifield that 	the employer was within its rights to make the
change unilaterally.
Based on the facts described above, 	this charge does not 	state a
prima facie violation of 	the Dills Act 	for the reasons which
follow.
In determining whether a party has violated Dills Act 	section
3519 (c), 	PERB utilizes either the 	"per se" or "totality of
the conduct" 	test, 	depending on the specific conduct 	involved
and the effect of such conduct on the negotiating process.
(Stockton Unified School District 	(1980) 	PERB Decision No. 	143.)
Unilateral 	changes are considered 	"per se" 	violations if 	certain
criteria are met. 	Those criteria are: 	(1) 	the employer
implemented a change 	in policy concerning a matter within the
scope of representation, 	and 	(2) 	the change was implemented
before 	the 	employer notified the 	exclusive 	representative 	and
gave 	it an opportunity to request negotiations. 	(Walnut Valley
Unified School District 	(1981) 	PERB Decision No. 	160; 	Grant Joint
Unified High School District 	(1982) 	PERB Decision No. 	196; 	State
of California. 	Department of Transportation 	(1983) 	PERB Decision
No. 361-S.)
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The charging party's 	initial burden is 	to demonstrate that the
State changed a policy within the scope of representation. 	The
policy regarding shift assignment 	is 	contained in the 	collective
bargaining agreement 	and allows 	the 	State 	to establish different
work schedules according to its needs with 15 days advance
notice. 	The exhibits provided with the charge 	indicate 	that 	the
union received more than 15 days advance notice of the change 	in
their shifts. 	Accordingly, 	there has been no demonstration that
the State changed a policy within the 	scope of negotiations 	and
this 	charge must be dismissed.
For these reasons the charge, 	as presently written, 	does not
state a prima facie case. 	If there are any factual 	inaccuracies
in 	this 	letter or additional 	facts which would correct 	the
deficiencies explained above, 	please amend the charge. 	The
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 January 19, 	1996, 	I
shall dismiss your charge. 	If you have any questions, 	please
call me at 	(916) 	322-3198.
Sincerely,
Bernard McMonigle
Regional Attorney
BMC:eke