State of California (Prison Industry Authority) (PERB 1203S)

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 	(PRISON
INDUSTRY AUTHORITY),
Respondent.
)
)
) 	Case No. 	SA-CE-881-S
PERB Decision No. 	1203-S
June 	18, 	1997
)
)
)
))
)
)
)
)
Appearance; 	Van Bourg, 	Weinberg, 	Roger & Rosenfeld by William A.
Sokol, 	Attorney, 	for International Union of Operating Engineers,
Craft-Maintenance Division, 	Unit 12.
Before Caffrey, 	Chairman; 	Johnson and Dyer, 	Members.
DECISION
JOHNSON, 	Member: 	This 	case 	is before the Public Employment
Relations 	Board 	(Board) 	on appeal 	by the 	International 	Union of
Operating Engineers, 	Craft-Maintenance Division, 	Unit 	12 	(IUOE)
to a Board agent's 	dismissal 	(attached) 	of 	the unfair practice
charge. 	IUOE alleged that 	the State of 	California 	(Prison
Industry Authority) 	violated section 3519(a) 	and 	(c) 	of
the Ralph C. 	Dills Act 	(Dills Act)1 by unilaterally changing a
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.
(
e

(c) 	Refuse 	or fail 	to meet 	and confer in
good 	faith with a 	recognized 	employee
organization.
term and 	condition 	of 	employment 	by 	hiring 	limited 	term employees
instead 	of 	permanent 	employees.
The 	Board has 	reviewed 	the 	entire 	record 	in 	this 	case,
including 	the 	Board agent's 	warning and dismissal 	letters,2 the
unfair practice 	charge, 	and IUOE's appeal. 	The Board finds 	the
warning 	and dismissal 	letters 	to be 	free 	of 	prejudicial 	error
and hereby adopts 	them as 	the 	decision of 	the Board 	itself.
ORDER	ORDER
The unfair practice 	charge 	in Case No. 	SA-CE-881-S 	is hereby
DISMISSED WITHOUT LEAVE TO AMEND.
Chairman 	Caffrey and Member Dyer 	joined 	in 	this 	Decision.
2A1though IUOE's 	appeal 	claims 	that 	the Board agent
misinterpreted its 	charge allegations, 	we note 	that page 2 	of 	the
attached warning 	letter 	contains 	the 	standard 	language 	expressly
inviting 	IUOE 	to 	clarify any misinterpretations 	by 	filing an
amended charge. 	IUOE did not 	take advantage of 	that 	opportunity,
and 	cannot 	do 	so now on appeal.
IUOE's belated attempt 	to 	clarify 	its 	charge 	constitutes
"new charge allegations" 	being 	raised 	for the 	first 	time 	on
appeal. 	PERB Regulation 32635 (b) 	(PERB regs, 	are codified at
Cal. 	Code Regs., 	tit. 	8, 	sec. 	31001 et seq.), 	states:
(b) 	Unless good cause is shown, 	a charging
party may not 	present 	on appeal 	new 	charge
allegations 	or new supporting 	evidence.
IUOE 	offers 	no 	explanation or 	showing 	of 	good cause 	for
submitting these allegations 	for the 	first 	time 	on appeal.
Therefore, 	they may not be presented for the 	first 	time 	on
appeal 	and have not been 	considered by 	the Board. 	(See 	State
of California 	(State Teachers Retirement System) 	(1997) 	PERB
Decision No. 	1202-S.)
22

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
PER
March 31, 	1997
William A. 	Sokol, Esq.
Van Bourg, 	Weinberg, Roger & Rosenfeld
180 Grand Avenue, 	Suite 1400
Oakland, 	CA 	94612
Re: 	International Union of Operating Engineers, 	Craft-
Maintenance Division, 	Unit 12 v. 	State of California
(Prison 	Industry Authority)
Unfair Practice Charge No. 	SA-CE-881-S
DISMISSAL 	LETTER
Dear Mr. Sokol:
On September 8, 	1996, 	you filed the above-captioned unfair
practice 	charge on behalf of the 	International Union of Operating
Engineers, 	Craft-Maintenance Division, Unit 12 	(IOUE). 	The
charge alleges that the Prison 	Industry Authority 	(PIA) 	violated
sections 3519(a) 	and 	(c) 	of the Ralph Dills Act. 	Specifically,
the charge contends that 	PIA unilaterally changed a term and
condition of employment at Corcoran State Prison by hiring
limited term employees 	(employees hired for a specific period of
time) 	instead of permanent employees 	(who are hired for an
indefinite period).
You requested and received an extension of 	time until March 26,
1997, 	to either amend or withdraw the above-entitled charge. 	I
have not heard from you as of today's date.
I indicated to you, 	in my attached letter dated March 6, 	1997,
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 March
13, 	1997 	(extended to March 26, 	1997), 	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 March 6, 	1997 	letter.
' 	.

SA-CE-881-S
Dismissal 	Letter
March 31, 	1997
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

SA-CE-881-S
Dismissal 	Letter
March 31, 	1997
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 BERNARD 	MCMONIGLE
Regional 	Attorney
Attachment
cc: 	Gail Onodera, 	DPA Legal
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
March 6, 	1997
William A. Sokol, Esq.
Van Bourg, Weinberg, 	Roger & Rosenfeld
180 Grand Avenue, 	Suite 1400
Oakland, 	CA 	94612
Re: 	International Union of Operating Engineers, 	Craft-
Maintenance Division. 	Unit 12 v. 	State of California
(Prison 	Industry Authority)
Unfair Practice Charge No. 	SA-CE-881-S
WARNING 	LETTER
==------==---- 	--
Dear Mr. Sokol:
On September 8, 	1996, 	you filed the above-captioned unfair
practice charge on behalf of the 	International Union of Operating
Engineers, 	Craft-Maintenance Division, Unit 12 	(IOUE). 	The
charge alleges that the Prison Industry Authority 	(PIA) 	violated
sections 3519(a) 	and 	(c) 	of the Ralph Dills Act. 	Specifically,
the charge contends that 	PIA unilaterally changed a term and
condition of employment at Corcoran State 	Prison by hiring
limited term employees 	(employees hired for a specific period of
time) 	instead of permanent employees 	(who are hired for an
indefinite period).
You allege that 	IUOE was not notified of PIA's practice of hiring
limited term employees until July 30, 	1996, 	and that PIA did not
meet and confer with IUOE in regards to this change 	in hiring
practices.
Rick Kiger, 	of this office, 	spoke to you once on this matter on
January 29, 	1997. 	In response to this call, 	you gave permission
for Mr. 	Kiger to speak with Mr. 	Carl Lombardo of IUOE. 	Mr. 	Kiger
called Mr. 	Lombardo on January 29 and January 31, 	but received no
answer. 	I called and left a voicemail message for you on this
date.
Discussion
To establish a violation, 	it must be shown that the employer made
a unilateral 	change 	in a existing work condition within the 	scope
of bargaining without offering to bargain with the union. 	Pajaro
Valley Unified School District 	(1978) 	PERB Decision No. 	51; 	Rio
Hondo Community College District 	(1983) 	PERB Decision No. 	321.
You assert that 	PIA has made a unilateral change by hiring
limited term employees and that 	IUOE was not notified of this

SA-CE-881-S
Warning Letter
March 6, 	1997
Page 2
change until July 30, 	1996. 	However, 	investigation reveals that,
in the fall of 1993, 	IUOE and PIA engaged in negotiations over
downsizing. 	The 	IUOE negotiating team included Stewart Weinberg
of your firm. 	At that time, 	there were discussions of existing
limited term employees and a signed agreement 	that no 	limited
term appointments would be made 	in the classifications 	affected
by the layoff. 	Accordingly, 	the IUOE appears to have known of the
PIA practice of hiring limited term employees at 	least 	as 	early
as fall, 	1993. 	This date is nearly three years prior to the date
used in your charge.
Government Code section 3514.5 states, 	in relevant part, 	that
PERB shall not 	"issue a complaint 	in respect of any charge based
upon an unfair practice occurring more than six months prior to
the 	filing of the charge." 	The 	limitations period begins to run
once the charging party knows, 	or should have known, 	of the
conduct underlying the charge. 	University of California 	(1990)
PERB Decision No. 	826-H, 	California State University 	(San Diego)
(1989) 	PERB Decision No. 	718-H. 	In the instant case, 	IUOE had
actual knowledge of 	the 	limited term employment 	for nearly two
and a half years prior to the statute of limitation date.
Invoking the standard set 	forth in University of California, 	this
charge must be considered filed outside the 	limitations period.
Accordingly, 	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 March 13. 	1997, 	I
shall dismiss your charge. 	If you have any questions, 	please
call me at (916) 	322-3198, ext. 355.
Sincerely,
BERNARD MCMONIGLE
Regional Attorney