State of California (Department of Motor Vehicles) (PERB 1291S)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA STATE 	EMPLOYEES
ASSOCIATION,
Charging 	Party,
v.
STATE OF CALIFORNIA 	(DEPARTMENT OF
MOTOR VEHICLES),
Respondent.
)
)
)
) 	Case No. 	LA-CE-418-S
PERB Decision No. 	1291-S
October 9, 	1998
)
))
)
)
)
)
Appearances; 	Brian K. 	Taylor, 	Attorney, 	for California State
Employees Association; 	State of 	California 	(Department 	of
Personnel Administration) 	by Michael E. 	Gash, 	Labor Relations
Counsel, 	for State of California 	(Department of Motor Vehicles).
Before Caffrey, 	Chairman; 	Dyer and Amador, 	Members.
DECISION
DYER, 	Member: 	This 	case comes before the Public Employment
Relations Board 	(Board) 	on appeal by the 	State 	of California
(Department 	of Motor Vehicles) 	(State) 	from a Board
administrative law judge's 	(ALJ) 	proposed decision 	(attached).
In the proposed decision, 	the ALJ held that 	the State violated
section 3519(a), 	(b) 	and 	(c) 	of the Ralph C. 	Dills Act 	(Dills
Act)1 when it 	established new performance 	standards without
1The Dills Act 	is 	codified at 	Government 	Code 	section 	3512
et seq. 	Section 3519 provides, 	in relevant 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

complying with the provisions 	of 	the 	expired memorandum of
understanding 	(MOU) 	between the State and the 	California State
Employees Association 	(CSEA).
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.
The Board has 	reviewed the 	entire 	record 	in this 	case,
including the hearing transcript, 	the proposed decision, 	the
State's 	exceptions 	and CSEA's 	response 	thereto. 	The Board 	finds
that 	the ALJ's 	findings 	of 	fact 	and conclusions 	of 	law are 	free
from prejudicial 	error and adopts 	them as 	the 	decision 	of 	the
Board 	itself 	consistent 	with 	the 	following 	discussion.
DISCUSSION
As 	the ALJ noted, 	the 	State and CSEA were parties 	to an MOU
which was effective 	from July 1, 	1992 	through June 30, 	1995.
Section 13.2 	of 	the MOU states, 	in relevant part:
a. 	The employer shall, 	in developing
performance/work standards, 	adhere to the
following: 	employee performance/work
standards 	shall 	be based upon valid work-
related criteria, 	which 	insofar as
practicable, 	include qualitative, 	as well as
quantitative measures. 	Such standards 	shall,
insofar as practicable, 	reflect the amount of
work which 	the 	average 	trained person 	can
reasonably turn out 	in a day. 	This paragraph
is not 	subject 	to the arbitration process.
b. 	Employee performance/work 	standards 	shall
be 	established 	in accordance with 	the
22

following 	guidelines:
(1) 	When a department 	intends 	to 	establish
new performance/work 	standards 	or 	add 	to 	or
alter 	existing 	performance/work 	standards,
the 	Union 	will 	be 	notified 	and 	given 	an
opportunity 	to meet 	to 	discuss 	the 	proposed
standards 	with 	the 	departments. 	The Union
shall 	respond 	and meet 	with 	the 	department
within thirty 	(30) 	calendar days 	of 	notice
unless 	an 	extension 	is 	mutually 	agreed 	to.
No 	response 	indicates 	an 	agreement.
(2) 	Normally, 	new performance/work standards
or 	changes 	in 	existing performance/work
standards 	shall 	not 	be 	implemented until 	they
have 	been 	tested 	for 	an 	appropriate 	period.
During 	the 	test 	period, 	employees 	will 	not 	be
held 	accountable 	to 	the 	proposed 	standards.
Following 	any 	test 	period, 	the 	State may
implement 	the 	standards 	and, 	upon request,
shall 	meet 	with 	the 	Union 	to 	discuss 	the
findings.
While 	the 	provisions 	of 	the MOU permit 	the 	State 	to 	develop
work/performance 	standards, 	the 	State violated section 	13.2 	of
the MOU when 	it 	established work/performance 	standards 	at 	the
Westminster 	Central 	Cashiering 	and 	Registration 	Unit 	without
complying with 	the provisions 	of 	the 	expired MOU.2 (Grant 	Joint
Union High School 	District 	(1982) 	PERB Decision No. 	196 	at
pp. 	9-10 	(noting 	that, 	absent 	a valid defense, 	the breach of 	a
collective 	bargaining 	agreement 	which has 	a 	continuing 	impact 	on
2Although 	the MOU expired on June 	30, 	1995, 	the 	Board has
long 	held 	that 	certain 	terms 	contained 	in 	an 	expired MOU 	remain
in 	effect 	until 	such 	time 	as 	bargaining 	over a 	successor
agreement 	has 	been 	completed 	by 	either 	reaching 	agreement 	or
concluding 	impasse proceedings. 	(See 	State 	of 	California
(Department 	of 	Corrections) 	(1996) 	PERB Decision No. 	1149-S at
fn. 	2, 	p. 	2.) 	Accordingly, 	the MOU provisions 	regarding the
development 	and 	establishment 	of 	performance 	standards 	survived
the 	expiration of 	the MOU. 	The parties 	do not 	dispute 	this.
33

a matter within 	the 	scope 	of 	representation without 	giving 	the
exclusive 	representative 	notice 	and an 	opportunity 	to bargain 	is
an unlawful unilateral 	change); 	Pajaro Valley Unified School
District 	(1978) 	PERB Decision No. 	51 at p. 	5.)
ORDER
Upon the 	findings of 	fact, 	conclusions of law, 	and the
entire record in this case, 	it 	is 	found that 	the State of
California 	(Department of Motor Vehicles) 	(State) 	violated the
Ralph C. 	Dills Act 	(Dills Act), 	Government Code section 3519(a),
(b) 	and 	(c) 	when it established performance standards 	in a manner
inconsistent 	with 	the procedures 	set 	forth 	in 	the memorandum of
understanding between the parties.
Pursuant to Dills Act section 3514.5(c), 	it is hereby
ORDERED that 	the State, 	its administrators, 	and representatives
shall:
A. 	CEASE AND DESIST FROM:
1. 	Establishing performance/work standards 	for 	the
employees 	in 	its 	Westminster 	Central 	Cashiering 	and Registration
Unit 	(CRC Unit) 	in a manner inconsistent with the expired
memorandum 	of 	understanding.
2. 	Denying to the 	California State Employees
Association 	(CSEA) 	the right 	to represent 	its members.
3. 	Interfering with the 	right 	of 	individual 	employees
to be 	represented by an 	employee 	organization of 	their 	choice.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED 	TO
EFFECTUATE THE 	POLICIES 	OF THE DILLS ACT:
1. 	Rescind the July 8, 	1997, 	Carole Creekmore letter
4

entitled 	"Expectations 	Statement 	for Westminster 	CRC Unit."
2. 	Within ten 	(10) 	workdays 	following the date 	that
this 	decision is no longer subject 	to appeal, 	post at all 	CRC
units 	in the 	state where 	notices 	are 	customarily placed 	for
employees, 	copies 	of 	the notice attached hereto as an Appendix.
The Notice must 	be 	signed by an authorized agent 	of 	the 	State,
indicating 	that 	it will 	comply with 	the 	terms 	of 	this 	Order.
Such posting 	shall 	be maintained 	for a period of 	thirty 	(30)
consecutive workdays. 	Reasonable 	steps 	shall be 	taken to 	insure
that 	the notice 	is not reduced in size, 	altered, 	defaced or
covered by any 	other material.
3. 	Written notice 	of 	the actions 	taken to 	comply with
this 	Order shall 	be made 	to 	the Sacramento Regional 	Director of
the 	Public 	Employment 	Relations 	Board 	in accordance with 	the
director's 	instructions. 	Continue to report, 	in writing, 	to the
regional 	director 	thereafter as 	directed. 	All 	reports 	to 	the
regional 	director 	shall 	be 	concurrently 	served 	on 	CSEA herein.
It 	is 	further Ordered that 	all 	other aspects 	of 	the 	charge
and 	complaint 	are 	hereby DISMISSED.
Chairman 	Caffrey and Member Amador 	joined 	in 	this 	Decision.
5
5

APPENDIX
NOTICE 	TO 	EMPLOYEES
POSTED 	BY ORDER OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
An Agency of 	the 	State 	of 	California
After a hearing 	in Unfair Practice Case No. 	LA-CE-418-S,
California State 	Employees Association v. 	State 	of 	California
(Department 	of Motor Vehicles). 	in which all parties had the
right 	to participate, 	it has been found that 	the State 	of
California 	(Department 	of Motor Vehicles) 	violated the Ralph C.
Dills Act 	(Dills Act), Government Code section 3519(a), 	(b) 	and
(c) .
As 	a result 	of 	this 	conduct, 	we have been ordered to post
this 	Notice and we will:
A. 	CEASE AND DESIST FROM:
1. 	Establishing performance/work standards 	for 	the
employees 	in 	its Westminster Central 	Cashiering and Registration
Unit 	(CRC Unit) 	in a manner inconsistent 	with the 	expired
memorandum of 	understanding.
2. 	Denying to 	the 	California State 	Employees
Association the 	right 	to 	represent 	its members.
3. 	Interfering with the 	right 	of 	individual 	employees
to be 	represented by an 	employee 	organization of 	their 	choice.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE THE 	POLICIES 	OF THE DILLS ACT:
1. 	Rescind the July 8, 	1997, 	Carole Creekmore letter
entitled 	"Expectations 	Statement 	for Westminster CRC Unit."
Dated: 	STATE 	OF 	CALIFORNIA
(DEPARTMENT OF MOTOR VEHICLES)
By:.
Authorized 	Agent
THIS 	IS AN OFFICIAL NOTICE. 	IT MUST REMAIN POSTED 	FOR AT LEAST
THIRTY 	(30) 	CONSECUTIVE WORKDAYS 	FROM THE DATE OF 	POSTING AND
MUST NOT BE REDUCED IN SIZE, 	DEFACED, 	ALTERED, 	OR COVERED WITH
ANY 	OTHER MATERIAL.

STATE 	OF 	CALIFORNIA
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA 	STATE 	EMPLOYEES
ASSOCIATION,
Charging 	Party,
v.
STATE 	OF 	CALIFORNIA 	(DEPARTMENT
OF 	MOTOR 	V E H I C L E S ) ,
Respondent.
)
)
)
) 	Unfair 	Practice
Case N o . 	LA-CE-418-S	)
)
) 	PROPOSED DECISION
) 	(6/26/98)
)
)
)
)
Appearances: 	Brian K. 	Taylor, 	Attorney, 	for California 	State
Employees 	Association; 	State 	of 	California 	(Department 	of
Personnel 	Administration) 	by Michael 	E. 	Gash, 	Labor Relations
Counsel, 	for 	State 	of 	California 	(Department 	of 	Motor V e h i c l e s ) .
Before Allen R. 	Link, 	Administrative 	Law Judge.
PROCEDURAL 	HISTORY
On July 	23, 	1997, 	the 	California 	State 	Employee Association
(CSEA) 	filed 	an 	unfair practice 	charge 	with 	the 	Public 	Employment
Relations 	Board 	(PERB 	or 	Board) 	against 	the 	State 	of 	California
(Department 	of Motor Vehicles) 	(State 	or D M V ) . 	The 	charge
alleged violations 	of 	subdivisions 	(b) 	and 	(c) 	of 	section 	3519,
which 	is 	a part 	of 	the Ralph 	C. 	Dills Act 	(Dills A c t ) . 1
1 All section 	references, 	unless 	otherwise 	noted, 	are 	to 	the
Government 	Code. 	The 	Dills 	Act 	is 	codified 	at 	section 	3512 	et
seq. 	Subdivisions 	(b) 	and 	(c) 	of 	section 3519 	state, 	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.

On September 22, 	1997, 	the Office of the General Counsel of
PERB, 	after an investigation of 	the 	charge, 	issued a complaint
against the State alleging violations of 	subdivisions 	(a), 	(b)
and 	(c) 	of section 3519.2
On October 14, 	1997, 	the State answered the complaint
denying 	all 	material 	allegations 	and 	asserting 	affirmative
defenses.
On November 6, 	1997, 	an informal 	conference was held in an
unsuccessful 	attempt 	to 	reach voluntary 	settlement. 	A 	formal
hearing was held before me on March 24, 	1998.
Each 	side prepared and 	submitted briefs. 	With the 	filing of
the 	last brief on June 18, 	1998, 	the case was 	submitted for a
proposed 	decision.
INTRODUCTION
CSEA alleges 	a 	DMV unit 	manager unilaterally developed 	and
promulgated 	performance/work 	standards 	which 	altered 	working
conditions. 	CSEA and 	the 	State 	had previously entered 	into 	a
memorandum of understanding 	(MOU) 	for Unit 	4. 	This MOU, 	among
other things, 	required the State, 	if 	it decided to promulgate
such standards, 	to do 	so within specified parameters 	and to offer
2Subdivision (a) 	of section 3519 	states:
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.
22

CSEA an 	opportunity to discuss 	the matter prior 	to
implementation. 	CSEA alleges 	the 	State's 	standards 	failed to
either 	stay within 	the 	agreed upon parameters 	or offer 	CSEA an
opportunity to discuss 	the 	matter.
DMV insists 	its manager did not promulgate 	standards, 	but
rather 	issued 	an 	"expectations 	statement" 	which merely 	set 	forth
the 	quantitative production 	levels 	expected of 	its 	employees.
FINDINGS 	OF 	FACT
Jurisdiction
The parties 	stipulated 	to 	the 	charging party being a
recognized 	employee 	organization 	and 	the 	respondent 	being 	a 	state
employer within 	the meaning of 	section 	3513.
Factual 	Background
CSEA is 	the 	exclusive 	representative 	of 	state 	employees 	in
bargaining Unit 	4. 	Employees 	involved in this 	case work 	for DMV
in 	the Westminster 	Central 	Cashiering 	and Registration Unit 	(CRC
unit). 	This unit deals primarily with automobile dealer
registration 	transactions. 	The 	involved 	employees 	rarely deal
directly with 	the public. 	Charging party and respondent 	were
parties 	to 	a MOU which was 	effective 	from July 1, 	1992 	through
June 30, 	1995. 	In relevant part, 	section 13.2 of this MOU
provides:
a. 	The employer shall, 	in developing
performance/work standards, 	adhere to the
following: 	employee performance/work
standards 	shall 	be 	based upon valid work-
related criteria, 	which insofar as
practicable, 	include qualitative, 	as well as
quantitative measures. 	Such standards 	shall,
insofar as practicable, 	reflect 	the amount of
33

work 	which 	the 	average 	trained person 	can
reasonably turn out 	in a day. 	This paragraph
is not 	subject 	to the arbitration process.
b. 	Employee 	performance/work 	standards
shall 	be 	established 	in 	accordance with 	the
following guidelines:
(1) 	When a department 	intends to
establish 	new performance/work 	standards
or add to 	or alter 	existing performance/
work standards, 	the Union will be notified
and given 	an opportunity 	to meet 	to
discuss 	the proposed 	standards 	with the
departments. . . .
Roy Fields 	(Fields) 	is 	the 	regional 	administrator that
supervises 	the 	CRC unit. 	Prior to 	Carole 	Creekmore's 	(Creekmore)
appointment 	as 	CRC unit manager, 	Fields 	temporarily assigned a
veteran manager 	to 	supervise 	and evaluate 	the unit. 	The manager
told Fields 	that 	the 	employees 	did not 	appear to 	know what 	was
expected of 	them. 	When he 	appointed Creekmore 	to 	the position,
Fields 	told her 	to 	establish employee 	expectations.
On July 8, 	1997, 	Creekmore authored and caused to be
disseminated 	to 	all 	employees 	a 	memorandum entitled 	"Expectations
Statement 	for Westminster 	CRC Unit." 	The 	memorandum 	set 	forth
eight 	"expectations" 	for the 	CRC unit 	employees. 	Number 	seven
stated:
Rate 	and 	cashier 	at 	the 	expected requirements
for the 	appropriate 	range.
1. 	Rate 	Clerk Range 	(A) 	16-19 	- 	Items per hour
Range 	(B) 	Range 	(B) 	18-21 	- 	Items per hour
Range 	(C) 	Range 	(C) 	20 	- 	Items per hour
and 	above
2. 	Audit 	220-230 	Items 	per 	hour
plus 	other
C.C. 	functions
4

3. 	Cashiering Regular 	85-100- 	Items 	per hour
" 	Junks 	112-117-Items 	per 	hour
4. 	Set-Up 	25-30 	- 	per 	hour
5. 	Mastering 	27-3 5 	- 	per 	hour
The 	memorandum's 	text 	ended with 	the 	following 	comments:
These 	expectations 	reflect 	or 	are 	below 	the
current 	office 	average.
Cashiering 	is 	normally performed by range 	C
technicians. 	Adjustments will be made 	for
range A and B.
NOTE: 	Training and length of 	time 	on the 	job
will 	be 	considered 	for 	all 	preceding
expectations.
At 	the very bottom of 	this 	two page 	document 	there was 	a
place 	for 	the 	individual 	employee 	to 	affix his/her 	signature
acknowledging receipt 	of 	the 	statement.
Although all 	twenty-three 	unit 	employees 	were 	asked 	to 	sign
the 	document, 	only two employees 	agreed to do so. 	Both Fields
and Creekmore 	state 	that 	these 	"expectations" 	reflect 	historical
numerical 	averages 	for 	the various 	classifications 	and 	routine
job responsibilities 	of 	the 	CRC unit 	employees.
On July 15, 	1997, 	CSEA Labor Relations Representative Helen
Leon 	(Leon) 	sent 	a 	letter to DMV stating that 	its 	"Expectations
Statement" 	appeared to be 	setting
standards and as 	such, 	before you implement
or write 	up 	any employees 	for not 	meeting
your expectations, 	you must Meet 	and Confer
-with the Union. 	Since the State of
California and the Union 	(CSEA) 	are 	currently
negotiating 	a 	successor MOU this 	issue 	should
be 	brought 	to 	the bargaining table.
(Emphasis 	in original.)
•
5
5

DMV has 	neither 	responded 	to 	Leon's 	letter nor 	agreed 	to
meet and 	confer 	on 	this 	matter.
Shortly after the 	"Expectations 	Statement" 	was 	distributed,
Creekmore 	notified 	the 	employees 	that 	if 	they did not 	agree 	with
the 	standards, 	or did not want 	to be bound by them, 	they would be
"out 	the 	door." 	In September 	she 	distributed employee voluntary
transfer 	forms. 	When 	she personally walked around the unit 	to
each work 	station to distribute 	these 	forms 	to 	the 	employees,
Creekmore 	asked the 	employees 	to 	fill 	them out, 	stating she
wanted to bring in her own crew.3 There 	is 	no reason 	for an
employee 	to 	fill 	out 	the 	form 	if 	s/he 	is 	not 	requesting a
transfer. 	She was, 	in effect, 	asking each employee to request a
transfer out 	of 	the 	CRC unit. 	Creekmore 	denies 	making either 	the
"out 	the 	door" 	or 	"bring in her own crew" 	statement.
CSEA representative 	Leon was 	told by twenty of 	the 	twenty-
three 	CRC unit 	employees 	that 	they believed 	that 	if 	they did not
3DMV has 	a policy that permits 	employees, 	in September and
March, 	to request geographic 	transfers. 	Although the 	forms 	are
made available during those two months, 	they are not usually
distributed en masse 	to the 	employees. 	The usual practice 	is 	to
remind employees 	of 	this 	option by means 	of 	a 	circulated memo 	or
a 	note 	on 	the 	bulletin board.
Creekmore 	states 	that 	a package 	of 	transfer 	forms 	came 	in
the 	mail 	and 	she 	merely distributed them directly to 	the
employees.
Creekmore 	has 	been 	the 	CRC unit manager 	for two Marchs 	and
one 	September. 	She does not 	believe 	she 	distributed the 	forms
the 	first March she was at 	the unit. 	However, 	she 	insists 	she
followed the 	same 	"personal 	distribution" 	system when 	she 	was 	a
Manager 	I 	in the 	Santa Ana 	field office.
66

meet 	Creekmore's 	"expectations" 	they could 	face 	a 	reduction 	in
pay or be 	required 	to 	transfer out 	of 	the 	unit.
At 	some 	DMV units 	employees 	have 	been given memoranda
setting various 	goals 	and expectations. 	These 	goals were 	almost
always expressed in office-wide, 	not 	individual, 	terms. 	However,
one witness 	remembered one circumstance, 	in which a memorandum
outlining personal 	goals 	was 	given to 	an 	individual.
A previous 	CRC unit 	manager, 	Jan Lucio, 	distributed a
statement 	similar to Creekmore's 	"Expectations 	Statement" 	in 	late
1995 	or early 1996. 	Most 	employees 	refused to 	sign that
statement, 	as well. 	CSEA became 	involved in the matter and the
statement 	was 	eventually withdrawn 	and 	taken out 	of 	the
employees' personnel files.
ISSUE
When 	DMV Manager 	Creekmore 	distributed 	her 	"Expectations
Statement," 	did 	she 	unilaterally alter 	the 	status 	quo by
establishing performance/work 	standards, 	thereby modifying 	terms
and conditions of employment 	in violation of subdivision 	(a), 	(b)
or 	(c) 	of 	section 3519?
CONCLUSIONS 	OF 	LAW
A unilateral 	change 	in 	terms 	and 	conditions 	of 	employment
within the 	scope 	of 	negotiations 	is 	a per se 	refusal 	to
negotiate. 	(NLRB v. 	Katz 	(1962) 	369 U.S. 	736 	[50 LRRM 2177].)
PERB 	has 	long 	recognized this principle. 	(Pajaro Valley Unified
School District 	(1978) 	PERB Decision No. 	51; 	San Mateo County
Community College District 	(1979) 	PERB Decision No. 	94.)
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Under subdivision 	(c) 	of 	section 3519 	an employer 	is
obligated 	to meet 	and negotiate 	in good 	faith with 	an 	exclusive
representative 	about 	matters 	within the 	scope 	of 	representation.
This 	section precludes 	an 	employer 	from making unilateral 	changes
in the 	status 	quo, 	whether such status 	quo 	is 	evidenced by a
collective bargaining agreement 	or by past 	practice. 	(Anaheim
City School District 	(1983) 	PERB Decision No. 	364; 	Pittsburg
Unified School 	District 	(1982) 	PERB Decision No. 	199.)
The 	Dills Act's 	scope 	of 	representation is 	found 	in
section 3516. 	It is, 	in pertinent part, 	as follows:
3516. 	The 	scope of 	representation shall be
limited to wages, 	hours, 	and other terms and
conditions of employment. 	. 	. 	.
Performance/work 	standards 	suggest 	rewards 	for 	attaining,
and discipline 	for failure to attain, 	such standards. 	Therefore,
the 	issue 	of 	standards 	is 	related to wages 	and within the 	scope
of 	representation.
In Tenneco Chemicals. 	Inc. 	v. 	Oil, 	Chemical and Atomic
Workers 	International Union 	(1980) 	249 	NLRB 	1176 	[104 	LRRM 1347]
(Tenneco) 	an employee work 	standard was 	defined as
a 	clearly articulated 	and precise 	measure 	to
be 	used as 	the 	basis 	for determining the
adequacy of an employee's performance. 	. 	. 	.
In addition, 	the parties' 	MOU, 	in effect, 	defined
performance/work standards 	in section 	13.2.a., 	when 	it 	set 	forth
certain parameters 	for the employer to 	follow when, 	and if, 	it
ever developed such standards. 	This 	section requires 	standards
to: 	(1) 	be based on valid work-related criteria; 	(2) 	insofar as
8

practicable, 	include qualitative, 	as well as quantitative
measures; 	and 	(3) 	insofar as practicable, 	reflect the amount of
work which 	the 	average 	trained person 	can 	reasonably turn out 	in
a day.
The 	July 	8 	expectations 	letter 	"clearly articulated 	a
precise measure" 	which was 	"to be used as 	the basis 	for
determining the 	adequacy of" 	performance. 	(See Tenneco.)
These expectations 	also met 	the MOU's 	"definition" 	in that
they articulated 	levels 	of production 	that 	were 	(1) 	based on
work-related criteria, 	(2) 	included quantitative measures, 	and
(3) 	reflected the 	amount 	of work which the 	average 	trained person
could reasonably turn out 	in a day. 	The 	only MOU parameter 	that
was not met was 	the one 	calling 	for 	such standards 	to 	include
qualitative measures 	and this 	was 	suggested 	in 	the 	statements 	at
the bottom of 	the 	letter.
An 	examination of 	Creekmore's 	"expectations" 	clearly 	shows
that 	they were 	not 	in the nature 	of 	a general plea 	for more 	and
better work, 	but 	rather created a 	specific 	and measured 	level 	of
anticipated 	production.
Respondent 	argues 	that 	it 	did not 	establish 	"standards," 	it
merely explained to 	the 	employees what was 	expected of 	them. 	It
insists 	that 	establishing goals 	is a management 	tool, 	a procedure
that 	ensures 	efficiency. 	However, 	it 	could have 	achieved this
same 	objective 	by merely 	intensifying 	its 	individualized
supervision, 	rather than 	creating specific 	and measured
"expectations." 	When it 	set 	forth specific 	standards 	for the
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employees to meet, 	it went beyond its management prerogative 	of
increasing 	efficiency 	and modified 	a 	working 	condition.
The primary impact 	of 	the 	July 8 	letter was 	to 	communicate
what 	management 	determined 	to be 	an 	acceptable 	level 	of
production. 	Implicit 	in this 	communication was 	a notice 	to each
employee 	that 	failure 	to attain 	such a 	level was 	to 	fall 	below
management's 	expectations, 	with reasonably predictable
consequences.
Whether 	they are 	called expectations 	or 	something 	else,
specific 	levels 	of 	desired performance 	that 	are 	developed 	and
distributed by 	the 	employer 	are 	performance/work 	standards.
Whether or not discipline, 	based on such standards, 	is
imposed 	is 	irrelevant. 	The 	standards 	were 	communicated and the
employees 	clearly understood 	that 	they would 	fail 	to meet 	them at
their peril. 	Neither the employees' 	attainment 	or failure to
meet 	such standards, 	nor the presence or absence of 	discipline,
has 	any effect 	on whether 	"standards" 	actually exist.
Prior to 	Creekmore's 	arrival 	a 	letter similar to her July 8
"expectations" 	letter had been disseminated to 	the 	employees.
After some discussion it was withdrawn. 	Therefore, 	the 	status
quo prior to July 1997 was 	that 	there were 	no 	specifically
articulated standards 	in the 	CRC unit.
When Creekmore 	and Fields 	caused the 	July 	8 	"Expectations
Statement" 	to be 	issued, 	it modified that 	status quo by
unilaterally 	setting performance/work 	standards 	for 	the
Westminster 	CRC unit, 	which affected matters 	within 	the 	scope 	of
10

representation. 	Therefore, 	when Creekmore 	issued her
"Expectations 	Statement" 	the 	respondent 	violated subdivision 	(c)
of 	section 3519.
CSEA's 	Rights Were Violated
When 	DMV unilaterally 	established 	employee 	performance/work
standards, 	it 	effectively diminished CSEA's 	ability to 	represent
the members 	of 	its bargaining unit. 	Therefore, 	when DMV took the
charged action, 	it 	interfered with CSEA's 	ability to properly
represent 	its members 	in their 	labor relations with the 	state
employer, 	a violation of 	subdivision 	(b) 	of 	section 3519.
Individual Employees' 	Rights Were Violated
When 	DMV 	unilaterally 	established 	employee 	performance/work
standards, 	it 	interfered with the 	rights of 	the employees 	in the
Westminster CRC unit 	to 	"participate 	in 	the 	activities 	of
employee organizations. 	. 	. 	for the purpose of representation on
all matters of 	employer-employee relations." 	(See 	sec. 	3515.)
Therefore, 	such action violated subdivision 	(a) 	of 	section 3519.
SUMMARY
After an examination of 	the 	foregoing 	findings 	of 	fact 	and
conclusions of 	law, 	and the entire 	record in this case, 	including
my observation of 	the demeanor of 	the witnesses, 	and after due
consideration of 	the briefs 	filed by the parties, 	it 	is 	found
that when DMV issued its July 8, 	1997, 	"Expectations Statement"
for its Westminster CRC unit 	employees, 	it unilaterally
established employee performance/work 	standards. 	Such standards
affected matters 	within 	the 	scope 	of 	representation 	and were,
11

therefore in violation of subdivisions 	(a), 	(b) 	and 	(c) 	of
section 3519.
REMEDY
PERB, 	in section 3514.4(c), 	is empowered to
. 	. 	. 	issue a decision and order directing an
offending party to 	cease 	and desist 	from the
unfair practice 	and 	to 	take 	such 	affirmative
action, 	including but 	not 	limited to the
reinstatement 	of 	employees 	with or without
back pay, 	as will 	effectuate the policies of
this chapter.
In order to 	remedy the unfair practice 	of 	the 	State 	and
prevent 	it 	from benefiting 	from 	its 	unlawful 	conduct 	and
effectuate the purposes of 	the Dills Act, 	it 	is 	appropriate 	to
order the 	State 	to cease 	and desist 	from 	(1) 	unilaterally
establishing performance/work 	standards 	for 	the 	Westminster 	CRC
unit, 	(2) 	denying to CSEA rights guaranteed to it by the Dills
Act, 	and 	(3) 	interfering with individual employees' 	right 	to be
represented by an 	employee 	organization on 	all 	matters 	of
employer-employee 	relations.
It 	is 	also appropriate 	that 	the 	State be 	required to post 	a
notice 	incorporating the 	terms 	of 	this 	Order at 	all 	DMV CRC unit
sites 	in 	the 	state where 	notices 	are 	customarily placed 	for
employees. 	This 	notice 	should be 	subscribed by an authorized
agent 	of 	DMV, 	indicating that 	it will 	comply with the 	terms
therein. 	The notice 	shall 	not be reduced in size, 	defaced
altered or 	covered by any other material. 	Posting 	such 	a 	notice
will 	provide 	employees with notice 	the 	State 	has 	acted 	in an
unlawful 	manner 	and 	is 	being 	required 	to 	cease 	and desist 	from
12

this 	activity. 	It 	effectuates 	the purposes 	of 	the Dills Act 	that
employees 	be 	informed of 	the 	resolution of 	the 	controversy and
will 	announce 	DMV's 	readiness 	to 	comply with the 	ordered 	remedy.
(See 	Placerville Union School 	District 	(1978) 	PERB Decision
No. 	69.) 	In Pandol 	and Sons v. 	Agricultural Labor Relations
Board 	(1979) 	98 Cal.App.3d 580, 	587 	[159 Cal.Rptr. 	584], 	the
California 	District 	Court 	of Appeals 	approved 	a 	similar posting
requirement. 	(See 	also National 	Labor Relations 	Board v. 	Express
Publishing Co. 	(1941) 	312 U.S. 	426 	[8 LRRM 415].)
PROPOSED 	ORDER
Based on the 	foregoing findings of 	fact, 	conclusions of 	law,
and the entire record in this 	case, 	it 	is 	found that 	the State of
California 	(Department of Motor Vehicles) 	(DMV) 	violated the
Ralph C. 	Dills Act 	(Dills Act), 	Government Code section 3519(a),
(b) 	and 	(c). 	Therefore, 	it is hereby ORDERED that DMV, 	its
administrators, 	and representatives 	shall:
A. 	CEASE AND DESIST FROM:
1. 	Unilaterally 	issuing performance/work 	standards
for 	the 	employees 	in 	its Westminster 	Central 	Cashiering and
Registration Unit 	(CRC unit).
2. 	Denying to 	the 	California 	State 	Employees
Association the 	right 	to 	represent 	its members.
3. 	Interfering with 	the 	right 	of 	individual 	employees
to be 	represented by an employee 	organization of 	their 	choice.
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B. 	TAKE THE 	FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE 	POLICIES 	OF THE DILLS ACT:
1. 	Withdraw and destroy all 	copies 	of 	the 	July 	8,
1997, 	Carole 	Creekmore 	letter entitled 	"Expectations 	Statement
for Westminster CRC Unit."
2. 	Within ten 	(10) 	workdays of 	service or a 	final
decision in this matter, 	post 	at all 	CRC units 	in the 	state where
notices 	are 	customarily placed for employees, 	copies 	of 	the
notice 	attached hereto as 	an Appendix. 	The 	notice must 	be 	signed
by an authorized agent 	of 	DMV, 	indicating that 	it will 	comply
with the 	terms 	of 	this Order. 	Such posting shall 	be maintained
for a period of 	thirty 	(30) 	consecutive workdays. 	Reasonable
steps 	shall 	be 	taken to 	insure 	that 	the notice 	is not 	reduced 	in
size, 	altered, 	defaced or covered by any other material.
3. 	Upon issuance of a final decision, 	make written
notification of 	the 	actions 	taken 	to 	comply with this 	Order 	to
the 	Sacramento Regional 	Director of 	the 	Public 	Employment
Relations 	Board 	in accordance with his 	instructions. 	Continue 	to
report, 	in writing, 	to the regional director thereafter as
directed. 	All 	reports 	to the regional 	director 	shall 	be
concurrently 	served 	on 	the 	charging party herein.
It 	is 	further Ordered that 	all 	other aspects 	of 	the 	charge
and 	complaint 	are 	hereby DISMISSED.
Pursuant 	to California -Code of Regulations, 	title 	8, 	section
32305, 	this 	Proposed Decision and Order 	shall become 	final unless
a party 	files 	a 	statement 	of 	exceptions with the 	Board 	itself 	at
the 	headquarters office 	in Sacramento within 2 0 	days of 	service
14

of this Decision. 	In accordance with PERB regulations, 	the
statement 	of 	exceptions 	should 	identify by page 	citation 	or
exhibit 	number the portions 	of 	the 	record, 	if 	any relied upon 	for
such exceptions. 	(See Cal. 	Code Regs., 	tit. 	8, 	sec. 	32300.) 	A
document 	is 	considered 	"filed" 	when 	actually received before 	the
close of business 	(5 p.m.) 	on the last day set 	for filing". 	. 	or
when 	sent 	by 	telegraph or 	certified or 	Express 	United 	States
mail, 	postmarked not later than the last day set 	for filing. 	. 	."
(See Cal. 	Code Regs., 	tit. 	8, 	sec. 	32135; 	Code Civ. 	P r o c , 	sec.
1013 	shall 	apply.) 	Any 	statement 	of 	exceptions 	and 	supporting
brief 	must 	be 	served concurrently with 	its 	filing upon 	each party
to 	this proceeding. 	Proof 	of 	service 	shall 	accompany each copy
served on a party or 	filed with the Board itself. 	(See 	Cal. 	Code
Regs., 	tit. 	8, 	secs. 	32300, 	32305 and 32140.)
ALLEN R. 	LINK
Administrative 	Law 	Judge
15