State of California (Employment Development Department) (California State Employees Association) * * * OVERRULED by Culver City Employees Association v. City of Culver City (2020) PERB Decision No. 2731-M (PERB 1247S)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA STATE 	EMPLOYEES
ASSOCIATION, 	SEIU LOCAL 	1000,
AFL-CIO,
Charging 	Party,
v.
STATE OF CALIFORNIA 	(EMPLOYMENT
DEVELOPMENT DEPARTMENT),
Respondent.
)
)
)
)
) 	Case No. 	LA-CE-404-S
PERB Decision No. 	1247-S
January 	28, 	1998
)
))
)
)
)
)
Appearances: 	California 	State 	Employees Association by Anne M.
Giese, 	Attorney, 	for California State Employees Association, 	SEIU
Local 	1000, 	AFL-CIO; 	State of California 	(Department of 	Personnel
Administration) 	by Michael E. 	Gash, 	Labor Relations Counsel, 	for
State of 	California 	(Employment Development Department).
Before Caffrey, 	Chairman; 	Johnson and Jackson, 	Members.
DECISION
JOHNSON, 	Member: 	This 	case 	is before the Public Employment
Relations 	Board 	(PERB or Board) 	on appeal 	by the 	California 	State
Employees Association, 	SEIU Local 	1000, 	AFL-CIO 	(Association) 	to
a 	Board agent's partial 	dismissal 	(attached) 	of 	the unfair
practice 	charge. 	The Association alleged that 	the 	State 	of
California 	(Employment Development 	Department) 	(State 	or EDD)
violated section 3519(a), 	(b), 	(c) 	and 	(d) 	of the Ralph C. Dills
Act 	(Dills Act) 1 by: 	(1) 	unilaterally changing job duties 	for
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
* * * OVERRULED by Culver City Employees Association v. City of Culver
City (2020) PERB Decision No. 2731-M * * *

certain employees; 	(2) 	unilaterally changing the job title of
certain classifications; 	(3) 	unilaterally changing the amount of
lunch 	time 	received by 	employees 	at 	the 	Buena 	Park 	Call 	Center;
and 	(4) 	failing to provide 	the Association with notice 	of 	its
intention 	to 	close 	certain 	field offices 	(among 	other allegations
not 	at 	issue here).
The Board has 	reviewed the 	entire 	record 	in this 	case,
including 	the 	Board agent's 	warning 	and partial 	dismissal
letters, 	the unfair practice charge, 	the Association's appeal,
and 	the 	State's 	response. 	The Board 	finds 	the warning and
partial 	dismissal 	letters 	to be 	free 	of prejudicial 	error and
adopts 	them as 	the 	decision of 	the Board 	itself, 	consistent 	with
the 	following 	discussion.
DISCUSSION
In 	its appeal 	of 	the dismissal 	of allegation 6 	involving the
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
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.
(d) 	Dominate or interfere with the
formation 	or administration 	of 	any employee
organization, 	or contribute 	financial 	or
other support 	to 	it, 	or in any way encourage
employees 	to join any organization in
preference 	to another.
22

change 	in lunch periods, 	the Association argues 	that 	the Board
agent's 	citation 	to Marysville 	Joint 	Unified School 	District
(1983) 	PERB Decision No. 	314 	(Marysville) 	is incorrect because
the parties' 	collective bargaining agreement 	(CBA) 	had expired.
The Association 	cites 	State 	of 	California 	(Department 	of 	Mental
Health) 	(1990) 	PERB Decision No. 	840-S 	(Mental Health) 	and
asserts that 	"EDD's practice, 	since expiration, 	supplants 	the
contract 	language and constitutes 	the 	status 	quo."
The Association's 	reference 	to Mental 	Health 	is misplaced.
In that 	case, 	the Board held that 	the 	contractual 	provision
relied upon by 	the 	employer 	to permit 	a unilateral 	scheduling
change 	did not 	authorize 	the 	employer's 	action 	regardless 	of
whether 	the 	contract 	had expired. 	The decision did not 	turn on
the 	fact 	that 	the parties' 	agreement had expired.
Upon expiration of a contract, 	the 	employer must maintain
certain 	terms 	and conditions 	of 	employment 	embodied 	in that
contract 	until 	such 	time 	as 	bargaining 	over a 	successor agreement
has been 	completed. 	(State 	of 	California 	(Department 	of 	Forestry
and Fire Protection) 	(1993) 	PERB Decision No. 	999-S.) 	This
policy promotes 	stability and avoids 	the 	disruption and
uncertainty which would 	result 	if 	basic 	terms 	and 	conditions 	of
employment 	terminated with 	the 	expiration of 	the 	agreement.
Thus, 	most provisions of an expired contract, 	such as 	those
involving wages, 	benefits and work hours, 	remain in effect during
successor negotiations unless 	the parties 	have 	agreed to an
alternative approach. 	There 	is no precedent 	for the
33

Association's 	assertion 	that 	an 	employer's 	action 	following
expiration of 	the agreement 	"supplants" 	the 	status 	quo of 	terms
and 	conditions 	of 	employment 	embodied 	in 	the provisions 	of 	the
contract.
In this 	case, 	the provision of 	the parties' 	expired CBA
dealing with 	the 	subject 	of meal 	periods 	remained 	in 	effect
during 	successor agreement 	negotiations 	following 	the 	expiration
of 	the CBA. 	Therefore, 	EDD was 	free 	to act 	in accordance with
that 	provision and did not 	commit 	a unilateral 	change 	in
violation of 	the Dills Act when it 	did so. 	(Marysville.)
ORDER
The partial 	dismissal 	of 	the unfair practice 	charge 	in Case
No. 	LA-CE-404-S 	is hereby AFFIRMED.
Chairman 	Caffrey and Member Jackson 	joined 	in 	this 	Decision.
44

STATE OF CALIFORNIA 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
177 Poet Street, 9th Floor
San Francisco, CA 94108-4737
(415)439-6940
PERU
August 1, 	1997
Helen T. Leon, LRR
California State Employees Association
10600 Trademark Parkway North, 	Suite 405
Rancho Cucamonga, 	CA 	91730
Re: 	PARTIAL DISMISSAL LETTER
California State Employees Association v. 	State of
California 	(Employment Development Department)
Unfair Practice Charge No. 	LA-CE-404-S
Dear Ms. Leon:
The above-referenced unfair practice charge, 	filed May 13, 	1997,
alleges the State of California, 	Employment Development
Department 	(State or EDD), 	unilaterally changed numerous terms
and conditions of employment for the classification of Employment
Program Representatives 	(EPR). 	The California State Employees
Association 	(CSEA) 	alleges this conduct violates Government Code
section 3519(b) 	and 	(c) 	of the Ralph C. Dills Act 	(Dills Act or
Act) .
I indicated to you, 	in my attached letter dated June 10, 	1997,
that 	certain allegations 	contained in the 	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 these
allegations to state a prima facie case or withdrew them prior to
June 18, 	1997, 	the allegations would be dismissed. 	On June 18,
1997, 	you filed a first amended charge.
The first amended charge reiterates 	the original allegations and
adds the following. 	The amended charge alleges seven 	(7)
separate unilateral changes in the terms and conditions of
employment 	for EPR's at the Employment Development Department.1
Specifically, 	the amended charge alleges:
1 Job titles under the classification of Employment Program
Representative are Unemployment 	Insurance Claims Processor and
Interviewer and Job Service Program Processor and Interviewer.
. 	.' 	. 	. ( 	(
------ ----,,---.

Partial Dismissal
LA-CE-404-S
August 1, 	1997
Page 2
1. 	The State changed the job duties for
EPR's.
2. 	The State changed the job title of
Unemployment Insurance Claims Processor to
Share Job Identifier.
3. 	The State implemented new performance
standards for EPR's.
4. 	The State 	implemented an electronic
monitoring system to restrain employees
movement during work hours.
5. 	The State changed the dress code at the
Buena Park Call Center.
6. 	The State changed the amount of lunch
time received by employees at 	the Buena Park
Call Center
7. 	The State failed to provide CSEA with
notice of its intention to close certain
field offices.
Based on the 	facts 	stated in both the original and amended
charges, 	the following allegations fail to state a prima facie
case, 	and are therefore dismissed.
With regard to Allegation 1, 	CSEA asserts the State has changed
the job duties for EPR's. 	In support of this allegation, 	CSEA
provided PERB with a copy of the State Personnel Board's 	(SPB)
job specification for the EPR classification and copies of a
position statement 	for positions within the EPR classification.
CSEA does not, 	however, 	delineate which additional or new job
duties employees are asked to perform. 	SPB specifications state
the following 	"typical tasks" 	for EPR's:
Job Service Program: 	Gathering and
disseminating labor market 	information to
employers and applicants; 	assisting employers
in their labor needs; 	interviewing, 	testing
and referring applicants for work; 	making job
development contacts;. . . .
Unemployment Insurance Program: 	Conducting
unemployment 	insurance 	eligibility
interviews; 	gathering all relevant facts 	„
' 	. 	. (

Partial Dismissal
LA-CE-404-S
August 1, 	1997
Page 3
through employer and other contacts and
claimant's 	statement; 	. . . .
SPB specifications 	regarding an EPR's knowledge and abilities
state:
Knowledge of: 	General economic conditions
and trends; California industrial, 	labor,
business and agricultural conditions, 	trends,
employment practices and employment and
training requirements; 	. 	. 	. provisions of
State and Federal 	laws and services available
to veterans; 	. 	. 	. interviewing techniques
utilized in claims determination work
including adjudication.
Position statements 	supplied by CSEA state the 	following job
duties for positions within the classification of EPR:
With a minimum of direction, 	assume placement
responsibility. 	Perform complex/sensitive
placement services. 	Demonstrate extensive
knowledge of clients and labor market
conditions 	associated with specialty
assignments. . 	. Conduct interviews
courteously and handles adjustment
authorizations 	and adjustments efficiently
while applying the policies and procedures of
the Department.
CSEA asserts 	the State has unilaterally changed the job duties in
the EPR classification. 	Facts presented fail, 	however, 	to
demonstrate a change within the scope of bargaining.
As indicated in my June 10, 	1997, 	letter, 	PERB has generally
recognized that direction of the work force and determination of
what work is to be performed is a managerial prerogative, 	and not
a subject of bargaining. 	(Davis Joint Unified School District
(1984) 	PERB Decision No. 	393.) 	However, managerial control in
this area is not unlimited. 	The State's discretion applies only
to those tasks that are reasonably understood to be among the
duties of the classification as established in the job
description. 	(Id.) 	Facts presented by CSEA in the amended-charge do not demonstrate what, 	if any, 	new job duties employee
are required to perform. 	As such, 	this allegation is dismissed.
Allegation 2 	contends the State changed the job title of
Unemployment 	Insurance Claims 	Processor to Share Job Identifier
and Customer Service Representative. 	In support of this
. .

Partial Dismissal
LA-CE-404-S
August 1, 	1997
Page 4
allegation, 	CSEA presents a copy of the job description for both
the Unemployment 	Insurance Claims Processor and the Share Job
Identifier. 	Additionally, 	during a phone conversation with CSEA
Labor Representative Helen Leon, 	Ms. 	Leon acknowledged that there
has been no State Personnel Board action regarding this alleged
job title change.
CSEA fails to present any facts demonstrating the State has
changed the job title for any of the positions mentioned above.
While CSEA presented job descriptions 	for these positions,
nothing in the job descriptions 	indicate a change in job title.
Indeed, 	CSEA acknowledges that the State Personnel Board has not
taken any action to change the job titles 	for these positions.
As such, 	this allegation fails to state a prima facie case.
Allegation 6 of the amended charge asserts 	that the State has
unilaterally changed the lunch period for EPR employees.
Specifically, 	CSEA contends that prior to March 24, 	1997, 	all
employees received a 60-minute lunch break. 	On March 24, 	1997,
Ms. 	Venters-Bowles distributed a memorandum to all represented
staff which states in pertinent part:
At this 	time management and supervision have
decided to incorporate the use of 30 minute,
45 minute, 	and 60 minute lunch periods which
will be scheduled at specific times and
rotated among staff. 	This will enable
supervision to have the flexibility required
to ensure adequate coverage of the telephone
limes while providing effective service to
our customers.
Article 19.3 	of 	the Unit 4 Memorandum of Understanding between
the State and CSEA states 	the following with regard to the Meal
Period:
a. 	Except 	for employees who are assigned to
a straight eight 	(8) 	hour shift, 	full-time
employees will normally be allowed a meal
period of not less than thirty 	(30) 	minutes
or more than sixty 	(60) 	minutes which shall
be scheduled near the middle of the work
shift. 	Meal periods taken shall not be
counted as part of total hours worked.
CSEA contends the State's March 24, 	1997, 	memorandum unilaterally
changed the lunch period for employees. 	Specifically, 	CSEA
contends that prior to March 24, 	1997, 	all employees were able to
take a 60 minute lunch break. 	After implementation of the new
(

Partial Dismissal
LA-CE-404-S
August 1, 	1997
Page 5
policy, 	some employees receive lunch breaks of only 30 or 45
minutes. 	This allegation fails, 	however, 	to state a prima facie
case.
Article 19.3 	of the parties MOU provides that lunch breaks be no
shorter than 30 minutes and no longer than 60 minutes. 	In
Marysville Joint Unified School District 	(1981) 	PERB Decision No.
314, 	PERB found that the plain meaning of a collective bargaining
agreement that provided lunch breaks of 	"no less than 30 minutes"
was not superseded by a consistent past practice of 	55-minute
lunch breaks. 	PERB concluded as follows 	(at p. 	10, 	citation
omitted):
The mere fact that an employer has not chosen
to enforce its contractual rights in the past
does not mean that, 	ipso facto, 	it is forever
precluded from doing so. 	Accordingly, 	we
find that 	the Association, 	by agreeing to a
contractual provision which plainly permitted
the District to grant teachers a lunch period
of 30 minutes or longer at its discretion,
waived its right to negotiate over the
District's reduction of the lunch period to
30 minutes.
In the present case, 	as in Marysville, 	the meaning of the
collective bargaining agreement is clear. 	The parties agreed
that employees would receive no less than a 30 minute lunch
break. 	Although employees have consistently received 60 minute
lunch breaks, 	the State's decision to enforce its contractual
right and order 30 minute lunch breaks does not constitute a
unilateral change. 	As such, 	this allegation is dismissed.
Finally, 	with regard to Allegation 7, 	CSEA asserts the State has
closed EDD field offices without providing CSEA notice of such
closures. 	CSEA contends the closure of these field offices
results in CSEA's inability to locate these members.
CSEA contends the State is closing its 	field office without
notice to CSEA is a unilateral change in past practice. 	As
stated above, 	in order to state a prima facie case CSEA must
demonstrate the State has altered a past practice regarding field
office closure. 	The amended charge fails, 	however, 	to present
any facts demonstrating CSEA and the State have a past practice
regarding the closure of field offices. 	Additionally, 	an
examination of the parties MOU does not demonstrate the State had
a contractual 	obligation to inform CSEA when a field office was
. 	. ( 	(

C
Partial Dismissal
LA-CE-404-S
August 1, 	1997
Page 6
slated for closure. 	As such, 	the allegation fails to state a
prima facie case.
Right to Appeal
Pursuant to Public Employment Relations Board regulations, 	you
may obtain a review of this dismissal of 	certain allegations
contained in 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
( 	(

Partial Dismissal
LA-CE-404-S
August 1, 	1997
Page 7
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 Kristin L. Rosi
Regional Attorney
Attachment
cc: Michael Gash

STATE OF CALIFORNIA 	PETE WILSON. Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
177 Post Street, 9th Floor
San Francisco, CA 94108-4737
(415) 439-6940
June 10, 	1997
Helen T. Leon, LRR
California State Employees Association
10600 Trademark Parkway North, 	Suite 405
Rancho Cucamonga, 	CA 	91730
Re: 	WARNING LETTER
California State Employees Association v. 	State of
California 	(Employment Development Department)
Unfair Practice Charge No. 	LA-CE-404-S
Dear Ms. Leon:
The above-referenced unfair practice charge, 	filed May 13, 	1997,
alleges the State of California, 	Employment Development
Department 	(State or EDD), unilaterally changed employees' 	job
duties and refused to bargain over the implementation of new
monitoring systems. 	The California State Employees Association
(CSEA) 	alleges this conduct violates Government Code section
3519(b) 	and 	(c) 	of the Ralph C. Dills Act 	(Dills Act or Act).
Investigation of the charge revealed the following. 	CSEA alleges
that for the last six months the States has 	instituted several
unilateral 	changes in bargaining unit members working conditions.
Specifically, 	the charge alleges as follows:
The Department 	(EDD) 	has drastically changed
the job duties of a significant number of
Employment 	Program Representatives without
noticing the Union. 	The Department has
instituted a new standard of performance
without providing the Union the opportunity
to meet and confer on these new standards.
CSEA also asserts the State has 	created an electronic monitoring
system in the call centers, 	without providing notice to CSEA.
Finally, 	the charge asserts:
In the last several months the EDD has been
closing its 	field offices and opening call
centers. 	EDD has not provided advance notice
to the Union regarding the movement of
employees and office closure, 	so that the
. 	. 	. (

Warning Letter
LA-CE-404-S
June 10, 1997
Page 2
Union can not locate and represent bargaining
unit employees. 	[sic]
On May 19, 	1997, 	I telephoned you and requested CSEA provide
further information regarding the above allegations.
Specifically, 	I requested copies of the new and old job
descriptions 	for Employment Program Representatives, 	and inquired
into why CSEA believed the change to these new duties 	fell within
the scope of representation. 	Additionally, 	I requested copies of
the new performance standards and an explanation regarding the
electronic monitoring system. 	Finally, 	I requested CSEA provide
specific dates 	for all of 	the above actions and specific
information regarding the closure of EDD offices. 	You stated you
would provide this information promptly. 	To date, 	I have not
received any further information regarding this 	charge.
Based on the above stated facts, 	the charge as presently written,
fails to state a prima facie case for the reasons stated below.
PERB regulation 32615 	(California Code of Regulations, 	Title 8,
section 32615) 	requires that a charge contain 	"a clear and
concise statement of 	the facts and the conduct alleged to
constitute an unfair practice." 	Thus, 	pleading or raising a bare
allegation without sufficient supporting facts 	is 	insufficient
for purposes of alleging a prima facie case. 	(California State
University (Pomona) 	(1988) 	PERB Dec. No. 710-H; United Teachers-
Los Angeles 	(Ragsdale) 	(1992) 	PERB Dec. No. 	944.) 	The Charging
Party must allege with specificity who, 	what, 	when, 	where and how
the Respondent's activities and conduct 	interfered with,
restrained and coerced the 	employee organization and bargaining
unit members. 	Mere speculation, 	conjecture or legal conclusions
are insufficient. 	(Id.) 	Upon receiving the charge, 	I informed
you the 	charge lacked specificity with regard to both the dates
of alleged actions and facts surrounding the allegations.
Without such information, 	the charge fails to state a prima facie
case, 	and may fall outside PERB's six months statute of
limitations.
In determining whether a party has violated EERA 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
(

Warning Letter
LA-CE-404-S
June 10, 	1997
Page 3
School District 	(1981) 	PERB Decision No. 	160; Grant Joint Unified
High School District 	(1982) 	PERB Decision No. 	196.)
CSEA alleges the State has 	implemented new job duties without
providing the organization an opportunity to meet and negotiate.1
PERB has generally recognized that direction of the work force
and determination of what work is to be performed is a managerial
prerogative, 	and not a subject of bargaining. 	(Davis Joint
Unified School District 	(1984) 	PERB Decision No. 	393.) 	However,
managerial control in this area is not unlimited. 	The State's
discretion applies only to those tasks that are reasonably
understood to be among the duties of the classification as
established in the job description. 	(Id.) 	As CSEA has not
provided any facts regarding the new and old job duties, 	this
allegation fails to demonstrate a prima facie case.
CSEA also alleges the State has 	implemented an electronic
monitoring system and closed many offices while opening call
centers. 	CSEA fails, 	however, 	to present facts demonstrating
these changes are within the scope of representation, 	and
therefore these allegations 	fail to state a prima facie case.
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 June 18. 	1997. 	I
shall dismiss your charge. 	If you have any questions, 	please
call me at 	(415) 	439-6940.
Sincerely,
Kristin 	L. 	Rosi
Regional Attorney
CSEA does not allege they requested to bargain the
these decisions, and therefore this letter will not
that issue.