State of California (Department of Personnel Administration) (California Union of Safety Employees) (PERB 1179S)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA UNION OF 	SAFETY
EMPLOYEES,
Charging 	Party,
v.
STATE OF CALIFORNIA 	(DEPARTMENT
OF PERSONNEL ADMINISTRATION),
Respondent.
)
)
)
) 	Case No. 	S-CE-867-S
PERB Decision No. 	1179-S
December 4, 	1996
)
))
)
)
)
)
Appearances: 	Neil Robertson, 	Legal Counsel, 	for California Union
of Safety Employees; 	Paul M. 	Starkey, 	Labor Relations Counsel,
for State of 	California 	(Department 	of 	Personnel Administration).
Before Caffrey, 	Chairman; 	Garcia and Dyer, 	Members.
DECISION AND 	ORDER
CAFFREY, 	Chairman: 	This case is before the Public
Employment 	Relations 	Board 	(Board) 	on appeal by the 	California
Union of 	Safety Employees 	(CAUSE) 	of a Board agent's 	dismissal
(attached) 	of 	its unfair practice charge. 	In the charge, 	CAUSE
alleged 	that 	the 	State 	of 	California 	(Department 	of 	Personnel
Administration) 	(State) 	violated section 3519(a), 	(b) 	and 	(c) 	of
the Ralph C. 	Dills Act 	(Dills Act)1 by soliciting employees 	to
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
to interfere with, 	restrain, 	or coerce
employees because 	of 	their exercise 	of 	rights
guaranteed by this 	chapter. 	For purposes 	of

resign from membership 	in CAUSE, 	and by attempting 	to undermine
employee 	support 	of 	CAUSE during negotiations.
this subdivision, 	"employee" 	includes an
applicant 	for employment 	or 	reemployment.
(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.
The 	Board has 	reviewed 	the 	entire 	record 	in this 	case,
including 	CAUSE'S 	original 	and 	amended unfair practice 	charge,
the Board agent's warning and dismissal 	letters, 	CAUSE'S 	appeal
and the 	State's 	response 	thereto. 	The Board 	finds 	the warning
and dismissal 	letters 	to be 	free 	of 	prejudicial 	error and adopts
them as 	the decision of 	the Board 	itself.
The unfair practice 	charge 	in Case No. 	S-CE-867-S 	is 	hereby
DISMISSED WITHOUT LEAVE 	TO AMEND.
Members 	Garcia and Dyer 	joined 	in 	this 	Decision.
22

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
September 20, 	1996
Neil 	Robertson, 	Legal 	Counsel
California 	Union 	of 	Safety 	Employees
2029 	"H" 	Street
Sacramento, 	CA 95814
Re: 	NOTICE 	OP DISMISSAL AND REFUSAL TO 	ISSUE 	COMPLAINT
California Union of 	Safety Employees 	v. 	State 	of 	California
(Department 	of 	Personnel 	Administration)
Unfair 	Practice 	Charge 	No. 	S-CE-867-S
Dear Mr. 	Robertson:
I 	indicated to you, 	in my attached letter dated August 	22, 	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
September 3, 	1996, 	the charge would be dismissed. 	This deadline
was 	subsequently extended to September 13, 	1996, 	at your request.
On September 	13, 	1996, 	your First Amended Charge was 	received.
The 	amended 	charge 	does 	not 	allege 	any new or 	additional 	facts.
Instead, 	the 	amended 	charge 	reiterates 	the 	allegations 	contained
in 	the 	original 	charge 	and argues 	that 	the 	case 	law cited 	in my
earlier letter, 	when applied to 	these 	allegations, 	should result
in 	issuance 	of 	a complaint.
The 	gravamen 	of 	the 	argument 	presented by both 	the 	original 	and
the 	amended charge 	is 	that 	the 	State 	has 	violated the Act 	by
circulating memos 	to 	employees 	informing 	them 	how 	they may
withdraw from membership 	in the Union and, 	at 	the 	same 	time,
informing 	them that 	the 	State 	has 	maintained the 	status 	quo 	on
salaries 	and benefits 	in 	the 	absence 	of 	an 	agreement 	with the
Union 	in order 	to 	avoid adversely affecting employees. 	This
juxtaposition of messages, 	under the 	"objective 	standard" 	urged
on 	PERB by the Union, 	constitutes 	both a promise 	of 	benefit 	and a
solicitation of 	employees 	to withdraw 	from the 	Union.
The 	analysis 	of 	the 	facts 	and 	law urged by the 	Union 	in 	its
amended charge was previously considered and rejected, 	for 	the
reasons 	set 	forth in my earlier letter. 	Therefore, 	I 	am
dismissing 	the 	charge 	based on 	the 	facts 	and reasons 	set 	forth
above as well 	as 	those contained in my August 	22, 	1996 	letter.
--- 	--
----

Dismissal 	Letter
S-CE-867-S
September 20, 	1996
Page 	2
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.)
' I

Dismissal 	Letter
S-CE-867-S
September 20, 	1996
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,
ROBERT 	THOMPSON
Deputy General 	Counsel
By Les 	Chisholm
Regional 	Director
Attachment
cc: 	K. 	William Curtis

STATE OF CALIFORNIA 	f 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
1031 18th Street, Room 102
Sacramento, CA 95814-4174
(916) 322-3198
August 	22, 	1996
Neil Robertson, 	Legal 	Counsel
California 	Union 	of 	Safety Employees
2029 	"H" 	Street
Sacramento, 	CA 95814
Re: 	WARNING LETTER
California Union of 	Safety Employees 	v. 	State 	of 	California
(Department 	of 	Personnel 	Administration)
Unfair 	Practice 	Charge 	No. 	S-CE-867-S
Dear Mr. 	Robertson:
The 	above-referenced unfair practice 	charge 	was 	filed with the
Public 	Employment 	Relations 	Board 	(PERB 	or Board) 	on August 	13,
1996. 	In 	its 	charge, 	the 	California Union of 	Safety Employees
(Union or Charging Party) 	alleges 	that 	the 	California Department
of 	Personnel 	Administration 	(State 	or DPA) 	violated Government
Code 	section 3519 (a) 	and 	(b) 	by soliciting employees 	to resign
from membership 	in the Union, 	and violated Government 	Code
section 3519 (c), 	(a) 	and 	(b) 	by attempting to undermine employee
support 	of 	the 	Union 	during negotiations.
Investigation of 	this 	charge 	revealed 	the 	following 	information.
Charging 	Party 	is 	the 	exclusive 	representative 	of 	State
bargaining unit 	7. 	The 	Union and the 	State were parties 	to a
Memorandum of Understanding 	(MOU) 	that expired June 	30, 	1995, 	and
are 	currently engaged 	in negotiations 	for a 	successor agreement.
DPA periodically 	issues 	memos 	or bulletins 	advising 	departments
of 	the 	status of negotiations, 	and encourages departments 	to
disseminate 	this 	information to 	employees. 	The 	Department 	of
Mental 	Health and the 	Office 	of 	Emergency Services, 	among others,
have 	promulgated memos 	to 	their 	employees 	which disseminated 	the
information 	provided 	by 	DPA.
These memos 	to 	employees vary 	in wording, 	but 	a 	typical 	example
is 	that 	issued by the Department 	of 	Insurance on May 24, 	1996.
That 	memo 	informed employees 	that 	20 	of 	21 	bargaining units 	"have
not 	reached 	agreement 	and negotiations 	continue 	to 	proceed
slowly." 	The memo also 	stated 	that:
DPA is 	not 	optimistic 	that 	agreements 	will 	be
reached 	in the 	near 	future. 	DPA's 	pessimism
is 	based on the 	reluctance 	of 	the unions 	to
agree 	to 	the 	civil 	service 	reform proposals
and that 	the 	1996/97 	State 	budget 	does 	not
include 	funding 	for 	salary increases.
-_-	_-	_-_-_-_--

Warning 	Letter
S-CE-867-S
August 22, 	1996
Page 2
The memo 	continued as 	follows:
. 	. 	. 	DPA has continued the status quo on
salaries, 	benefits, 	and other terms and
conditions 	of 	employment 	in an effort 	to:
1) 	minimize 	administrative 	and operative
disruptions to the department; 	and 2) 	DPA
wishes 	to 	avoid 	adversely 	affecting 	employees
simply because 	of 	the 	inability to 	reach
agreement 	with 	the 	employee's 	union.
However, 	there 	are 	three major changes 	which
impact 	the 	department's 	employees 	that 	are
directly 	caused by 	the 	expiration 	of 	the 	CBAs
in July of 	1995. 	Although employees were
informed of 	these 	changes 	last 	July, 	DPA
believes 	it 	is 	important 	to 	inform new
employees 	and remind 	other 	employees 	of 	the
following policy 	changes.
1. 	Employees 	are 	no 	longer 	subject 	to
fair 	share 	deductions 	(agency shop
fees 	or voluntary 	fee payer
deductions in unit 9 ) ;
2. 	Employees 	are 	no 	longer prohibited
from 	dropping 	their 	union
membership. 	Employees may withdraw
their union membership 	at 	any time
by notifying 	the 	State 	Controller's
Office 	and 	their 	respective 	union
in writing.
3. 	Except 	for unit 	7 employees, 	all
represented 	employees 	covered 	by
the 	Labor 	Standards Act 	(Work Week
Group 	2) 	are no 	longer permitted to
earn 	compensating 	time 	off 	(CTO)
for overtime; 	payment 	for overtime
must 	be 	in 	cash only.
On June 4, 	1996, 	DPA issued a 	"confidential" 	memo to Agency
Secretaries 	and 	Department 	Directors 	concerning 	union
membership.1 The memo 	attached three 	reports. 	One 	reported
1 Recipients 	of 	the 	memo 	were 	asked 	not 	to 	distribute 	the
information 	beyond 	their 	"immediate 	management 	team."

monthly union 	losses 	of 	fair 	share 	contributions 	(based on 	the
fair 	share 	fees being received 	in June 	1995). 	The 	second report
compared 	the 	gain or 	loss 	of 	employees 	and union dues 	for 	each
union, 	again using June 	1995 	as 	a base. 	The 	third report
compared union membership 	in 	June 	1995 	with union membership 	in
April 	1996.
Warning 	Letter
S-CE-867-S
August 22, 	1996
Page 3
According 	to 	the 	latter report, 	the 	unions 	representing 	seven
bargaining units 	(including 	Charging 	Party) 	had 	increased
membership 	as 	a percentage 	of 	the 	unit 	even though the 	number of
members 	had 	declined.
Discussion
Charging 	Party argues 	that 	these memoranda, 	when 	"viewed 	in 	their
overall 	text 	and 	in 	the 	light 	of 	the 	surrounding 	circumstances,"
have 	"coercive meaning." 	Charging 	Party's 	argument 	is 	as
follows:
DPA 	is 	proclaiming 	that 	it 	has 	provided
employees 	with 	a 	great 	favor by maintaining
crucial terms and conditions, 	conversely, 	it
is 	implied 	that 	DPA 	could 	unilaterally 	remove
these 	benefits 	should 	negotiations 	become 	too
protracted. 	The 	fact 	that 	DPA discusses
employees 	right 	to withdraw membership 	in 	the
same memorandums 	in which 	it proclaims 	the
conveyance 	of 	a 	favor, 	takes on a 	form of
solicitation. 	Clearly, 	such correspondence
is 	geared 	to encourage 	current 	members 	to
withdraw their membership, 	and to dissuade
new 	employees 	from 	joining 	the 	Union.
Further, 	continues 	the Union's 	argument, 	"DPA is engaging in
tactics 	to undermine 	the Union during 	this 	time 	of 	negotiations"
as 	evidenced by 	their 	"solicitation" 	of 	members 	to withdraw 	from
unions 	and their 	reports 	on union membership and dues 	income.
This 	conduct, 	according to Charging Party, 	is 	"a form of bad
faith negotiations."
The 	Board has 	long held 	that 	an 	employer 	has 	a protected 	right 	to
communicate with employees 	on employment 	related matters, 	so 	long
as 	that 	communication does 	not 	violate 	certain 	standards.
(Alhambra 	City and High School 	Districts 	(1986) 	PERB Dec. 	No.
560, 	citing Rio Hondo Community College District 	(1980) 	PERB Dec.
No. 	128 	(Rio Hondo).) 	In Rio Hondo the Board considered the
language 	of 	section 	8(c) 	of 	the National 	Labor Relations Act 	in
adopting a 	test 	regarding an employer's 	free 	speech 	rights 	as

follows:
Warning 	Letter
S-CE-867-S
August 22, 	1996
Page 4
[T]he 	Board 	finds 	that 	an Employer's 	speech which
contains 	a 	threat 	of 	reprisal 	or 	force 	or promise 	of
benefit 	will 	be perceived 	as 	a means 	of violating 	the
Act and will, 	therefore, 	lose 	its protection and
constitute 	strong evidence 	of 	conduct 	which 	is
prohibited by 	[the Act].
Statements 	made 	by 	an 	employer 	are 	viewed 	in 	their 	overall
context 	to determine 	if 	they have 	a 	coercive meaning 	(Los Angeles
Unified School District 	(1988) 	PERB Dec. 	No. 	659). 	The Board
considers 	the 	accuracy of 	the 	content 	of 	the 	speech 	in
determining 	whether 	the 	communication 	constitutes 	an 	unfair 	labor
practice 	(Alhambra City and High School 	Districts, 	supra; 	Muroc
Unified School 	District 	(1978) 	PERB Dec. 	No. 	80; 	Chula Vista City
School District 	(1990) 	PERB Dec. 	No. 	834), 	but even where
allegations 	arguably 	establish 	that 	an 	employer's 	"statements 	are
false, 	misleading and derogatory, 	[the 	statements do not]
constitute unlawful 	communication 	[if 	their] 	expression 	contains
no 	threat 	of 	reprisal 	or 	force 	or promise 	of benefit." 	(Charter
Oak Unified School District 	(1991) 	PERB Dec. 	No. 	873.) 	The
determination whether 	an 	employer's 	speech 	is protected or
constitutes 	a 	proscribed 	threat 	or promise 	is made 	by 	applying an
objective 	rather 	than a 	subjective 	standard. 	(Trustees 	of 	the
California State University 	(1989) 	PERB Dec. 	No. 	777-H.)
The National 	Labor Relations 	Board 	(NLRB) 	has 	applied 	this 	same
test 	to 	questions 	involving employer 	conduct 	like 	that 	complained
of here. 	Citing Perkins Machine Company 	(1963) 	141 NLRB 	697 	and
Cyclops Corp. 	(1975) 	216 NLRB 857,2 the NLRB held that:
Established 	[NLRB] 	principle 	holds 	that 	while 	employers
may not 	solicit 	employees 	to withdraw 	from union
membership, 	they may, 	on the other hand, 	bring to
employees' 	attention 	their 	right 	to 	resign 	from the
union 	and 	revoke 	dues-checkoff 	authorizations 	so 	long
as 	the 	communication 	is 	free 	of 	threat 	and coercion or
promise of benefit. 	[Ace Hardware Corp. 	(1984) 	271
NLRB 	178.]
The 	State's 	conduct 	in this 	case 	does 	not 	violate 	the 	standards
2In 	Perkins. 	the 	employer 	distributed, 	an 	unsolicited
communication 	informing 	employees 	how 	they 	could 	withdraw 	from
union 	membership, 	and 	in 	Cyclops 	a 	similar 	communication 	was
included 	in 	employee 	pay envelopes.

described above. 	First, 	the memos 	conveying information
concerning 	the 	right 	to 	resign 	from Union membership 	simply
communicate 	that 	the 	right 	exists 	and do not 	advocate 	a 	course 	of
action. 	The 	allegations 	do not 	establish that 	the 	State's
communications 	concerning 	fair 	share 	fees 	or union membership 	was
inaccurate, 	nor 	that 	it 	contained promise 	of benefit 	or threat 	of
coercion. 	The 	facts 	alleged do 	not 	establish that 	the 	State
solicited employees 	to withdraw 	from membership, 	only 	that 	the
State 	informed employees 	of 	their right 	to do 	so. 	The 	Union's
subjective 	perception of 	this 	conduct 	as 	employer 	solicitation of
employees 	to 	drop out 	of 	the 	Union does 	not 	establish prima 	facie
evidence 	of 	a violation under 	the 	applicable, 	objective 	standard.
Warning 	Letter
S-CE-867-S
August 22, 	1996
Page 5
Likewise, 	the 	State's 	statement 	of 	its opinion 	regarding the
reasons 	for the parties' 	lack of progress 	in negotiations does
not 	constitute 	prima 	facie 	evidence 	of 	bad 	faith bargaining 	or
interference with the Union's 	representational 	rights. 	An
employer does 	not 	violate 	the Act 	by the 	expression 	of 	opinion,
even opinion critical 	of 	the union, 	so long as 	the 	communication
is 	not 	threatening and coercive. 	(Temple 	City Unified School
District 	(1990) 	PERB Dec. 	No. 	841; 	see also Charter Oak Unified
School District, 	supra.) 	Here, 	DPA's explanation of 	the reasons
for 	its 	maintenance 	of 	employment 	terms 	and conditions 	may be
incomplete 	and/or misleading, 	in that 	it 	fails 	to reference
relevant 	statutory or decisional 	law, 	but 	the 	communication does
not 	"on 	its 	face 	carry the 	threat 	of 	reprisal or 	force, 	or
promise 	of benefit," 	and thus 	does 	not 	constitute unlawful
communication. 	(Chula Vista City School District, 	supra; 	Charter
Oak Unified School 	District, 	supra.)
Finally, 	the 	allegation that 	the 	State's 	communications 	evidence
a violation of Government 	Code 	section 3519 (c) 	also 	fails 	to
state 	a prima 	facie 	case. 	The 	standard generally applied to
determine 	whether good 	faith negotiations 	have 	occurred 	is 	called
the 	"totality of 	conduct" 	test. 	This 	test 	reviews 	the 	entire
course 	of 	conduct 	during negotiations 	to 	determine 	whether 	the
parties 	have 	negotiated 	in good 	faith with 	the 	"requisite
subjective 	intention of 	reaching 	an 	agreement." 	(Pajaro Valley
Unified School District 	(1978) 	PERB Dec. 	No. 	51.). 	As discussed
above, 	relevant 	precedent 	gives 	employers 	considerable 	latitude
to 	exercise 	free 	speech rights 	concerning negotiations 	so 	long 	as
the 	speech is 	not 	coercive or threatening. 	(See, 	for example,
Rio Hondo Community College District, 	supra. 	and Chula Vista 	City
School District, 	supra.) 	The State's communications, 	lacking the
element 	of 	coercion 	or promise 	of 	benefit 	under 	an 	objective

standard, 	do 	not 	comprise 	evidence 	of 	bad 	faith bargaining.3
Warning 	Letter
S-CE-867-S
August 22, 	1996
Page 6
Conclusion
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 	September 	3, 	1996. 	I
shall dismiss your charge. 	If you have any questions, 	please
call me at 	(916) 	322-3198, 	ext. 	359.
Sincerely,
Les 	Chisholm
Regional 	Director
HLC:cb
3The 	allegations 	in the 	instant 	case 	are easily distinguished
from those in Modesto City Schools 	(1986) 	PERB Dec. 	2 91, 	where the
Board found that a communication which came 	"at a critical juncture
and misrepresented the positions of the parties by alleging that an
offer had been made 	. 	. 	. 	and rejected" was evidence of bad faith.