State of California (Department of Personnel Administration) (PERB 1313S)

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 	(DEPARTMENT
OF PERSONNEL ADMINISTRATION),
Respondent.
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) 	Case No. 	SA-CE-947-S
PERB Decision No. 	1313-S
January 	29, 	1999
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Appearances: 	Harry J. 	Gibbons, 	Attorney, 	for California State
Employees Association, 	SEIU Local 1000, 	AFL-CIO; 	State of
California 	(Department 	of 	Personnel Administration) 	by Paul M.
Starkey, 	Labor Relations Counsel, 	for State of California
(Department of Personnel Administration).
Before Caffrey, 	Chairman; 	Dyer and Amador, 	Members.
DECISION
CAFFREY, 	Chairman: 	This case is before the Public
Employment 	Relations 	Board 	(PERB 	or Board) 	on exceptions 	filed by
the California State Employees Association, 	SEIU Local 	1000, 	AFL-
CIO 	(CSEA) 	and the 	State 	of 	California 	(Department 	of 	Personnel
Administration) 	(DPA) 	to a proposed decision 	(attached) 	by a PERB
administrative law judge 	(ALJ). 	In his proposed decision, 	the
ALJ dismissed 	the 	unfair practice 	charge 	and 	complaint 	in which
it 	was 	alleged 	that 	DPA unilaterally 	changed a policy 	concerning
union 	leave 	and 	interfered with 	the 	exercise 	of 	protected 	rights

in violation of 	section 3519(a), 	(b) 	and 	(c) 	of 	the Ralph C.
Dills 	Act 	(Dills 	A c t ) . 1
The 	Board 	has 	reviewed 	the 	entire 	record 	in 	this 	case,
including 	the 	proposed 	decision, 	the 	hearing 	transcript 	and 	the
filings 	of 	the 	parties. 	The 	Board 	finds 	the ALJ's 	findings 	of
fact 	and 	conclusions 	of 	law 	to 	be 	free 	of 	prejudicial 	error 	and
adopts 	them as 	the 	decision 	of 	the 	Board 	itself 	in 	accordance
with 	the 	following 	discussion.
DISCUSSION
CSEA's 	Exceptions
To 	prevail 	in 	a unilateral 	change 	case, 	the 	charging party-
must 	establish 	that 	the 	employer, 	without 	providing 	the 	exclusive
representative 	with 	notice 	or 	the 	opportunity 	to 	bargain,
breached 	or 	altered 	the 	parties' 	written 	agreement 	or 	established
1 The Dills 	Act 	is 	codified 	at 	Government 	Code 	section 	3512
et 	seq. 	Section 	3519 	states, 	in pertinent part:
It 	shall 	be 	unlawful 	for 	the 	state 	to 	do 	any
of 	the 	following:
(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
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.
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past 	practice 	concerning a matter within 	the 	scope 	of
representation, 	and that 	the 	change had a generalized effect 	or
continuing 	impact 	on the 	terms 	and conditions 	of 	employment 	of
bargaining unit members. 	(Pajaro Valley Unified School 	District
(1978) 	PERB Decision No. 	51 at p. 	5; 	Grant Joint Union High
School District 	(1982) 	PERB Decision No. 	196 at p. 	9.)
CSEA's 	exceptions are based primarily on 	the assertion that
the ALJ 	incorrectly 	concluded 	that 	DPA did not 	breach 	the
parties' 	July 1995 agreement 	regarding union leave. 	The relevant
language of the agreement 	indicates, 	in pertinent part, 	that:
The Civil 	Service Division Director and
Deputy Civil 	Service Division 	officers 	shall
be granted leave. 	. 	. 	.
CSEA argues 	that 	this 	language 	clearly and 	explicitly authorizes
union 	leave 	for 	one 	Division Director and multiple 	Deputy
Division officers. 	Thus, 	when DPA indicated that 	only the
Division Director and a 	single 	Deputy Division 	officer would be
granted union leave, 	it breached the 	terms 	of 	the agreement 	in
violation of 	the Dills Act.
In interpreting 	contractual provisions, 	it 	is unnecessary to
look beyond 	the plain 	language 	of 	the 	contract 	when 	that 	language
is 	clear and unambiguous. 	(Marysville Joint Unified School
District 	(1983) 	PERB Decision 314 	at p. 	9.) 	When contract
language 	is 	found to be ambiguous, 	the Board looks 	to bargaining
history and 	the past 	practice 	of 	the parties 	to ascertain 	the
meaning of 	the 	language. 	(Barstow Unified School 	District 	(1996)
PERB Decision No. 	1138 at p. 	13.)
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The pertinent 	contract provision 	in this 	case 	is 	susceptible
to differing 	interpretations. 	The word 	"officers" 	can be 	read to
refer to both the 	"Civil 	Service Division Director" 	and 	"Deputy
Civil 	Service Division" 	positions, 	leading to the conclusion that
a 	total 	of 	two people are authorized to 	receive union leave, 	as
DPA claims. 	The word 	"officers" 	can also be 	read to refer only
to the 	"Deputy Civil 	Service Division" 	positions, 	leading to 	the
conclusion 	that 	the Division Director and at 	least 	two Deputy
Division officers 	are authorized to 	receive union leave, 	as 	CSEA
asserts. 	Because both interpretations are plausible, 	the
language 	cannot be 	considered 	to be 	clear and unambiguous. 	As 	a
result, 	the bargaining history and the practice 	of 	the parties
must be 	reviewed 	to ascertain 	the meaning 	of 	the provision.
The ALJ 	reviewed 	this 	history and practice 	and 	concluded
that 	the 	contractual 	provision 	should be 	interpreted 	to mean 	that
only two people were entitled to union leave, 	as DPA asserts.
CSEA has 	presented no 	exceptions which 	call 	the ALJ's
determination 	into 	question.
CSEA also 	excepts 	to 	the ALJ's 	finding 	that 	DPA did not
unlawfully discriminate 	against 	CSEA members, 	or 	interfere with
their exercise of protected rights, 	when it 	refused to grant
union leave 	to more 	than 	two officers under the 	terms 	of 	the
disputed contractual provision. 	However, 	since 	the disputed
contract 	language 	has been 	found 	to provide 	for union 	leave 	for
only two CSEA officers, 	DPA's 	insistence 	on strictly applying
that 	contractual 	provision 	cannot 	be 	considered unlawful
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discrimination 	or 	interference 	under 	the 	standards 	adopted by 	the
Board. 	(Novato Unified School District 	(1982) 	PERB Decision
No. 	210 at pp. 	6-9; 	Carlsbad Unified School District 	(1979) 	PERB
Decision No. 	89 at p. 	11.) 	Moreover, 	as noted by the ALJ, 	CSEA
has 	failed 	to demonstrate 	that 	DPA's 	conduct 	was 	unlawfully
motivated. 	CSEA's 	exception is without merit.
DPA's 	Exceptions
Although 	it 	supports 	the ALJ's proposed decision on 	the
merits, 	DPA offers two exceptions. 	First, 	DPA argues that PERB
lacks 	jurisdiction to consider CSEA's 	charge, 	as 	it must be
deferred 	to arbitration. 	Second, 	DPA asserts 	that 	CSEA waived
its 	right 	to negotiate 	over 	the alleged 	change 	in union leave
policy and, 	therefore, 	is barred from filing the 	instant unfair
practice 	charge.
Dills Act section 3514.5(a) 	provides, 	in pertinent part,
that 	PERB shall 	not:
. 	. 	. 	issue a complaint against conduct also
prohibited by 	the provisions 	of 	the 	agreement
between 	the parties 	until 	the 	grievance
machinery of the agreement, 	if 	it exists and
covers 	the matter at 	issue, 	has been
exhausted, 	either by settlement 	or binding
arbitration.
In Lake Elsinore School District 	(1987) 	PERB Decision No. 	646
(Lake Elsinore) 	at pp. 	25-28, 	the Board interpreted identical
language 	included 	in 	the 	Educational 	Employment 	Relations Act.
The 	Board held 	that 	a 	charge must 	be 	dismissed and deferred 	if:
(1) 	the grievance machinery of 	the agreement 	covers 	the matter at
issue and culminates 	in binding arbitration; 	and 	(2) 	the 	conduct
55

complained of 	in 	the unfair practice 	charge 	is 	prohibited by 	the
provisions 	of 	the agreement between the parties.
DPA notes 	that 	the parties 	agreed 	in September 	1995 	to a
settlement 	of 	a dispute 	over 	release 	time 	for CSEA President
Perry Kenny 	(Kenny). 	That agreement 	specifically states 	that
"disputes arising out of the Settlement Agreement 	. 	. 	. 	shall be
submitted to arbitration." 	DPA asserts, 	therefore, 	that 	the
instant 	case must 	be 	dismissed and 	deferred 	to 	arbitration
pursuant 	to 	the 	Lake 	Elsinore 	standard.
DPA is 	incorrect. 	The 	referenced settlement 	agreement
covers 	release 	time 	for Kenny only. 	The 	instant 	dispute 	involves
union leave 	for other CSEA officers under the 	terms 	of 	the
parties' 	July 1995 agreement. 	Therefore, 	the conduct complained
of 	in CSEA's 	unfair practice 	charge 	is 	not 	covered by the
September 	1995 	settlement 	agreement, 	and the 	charge may not be
dismissed and 	deferred 	to 	arbitration under 	that 	agreement.
DPA also argues 	that 	CSEA waived 	its 	right 	to bargain over
the 	issue 	of 	union 	leave when 	it 	cancelled a bargaining 	session
over the 	subject which had been scheduled for January 22, 	1997.
This 	argument 	also 	fails. 	When an employer does 	not provide
notice 	and 	the 	opportunity 	to bargain 	over an alleged 	change,
the 	exclusive 	representative's 	failure 	to pursue bargaining 	is
not 	considered a waiver. 	(Beverly Hills 	Unified School 	District
(1990) 	PERB Decision No. 	789 at pp. 	9-10.) 	Similarly, 	when an
alleged unilateral 	change has 	already been 	implemented, 	or 	if 	the
employer has 	already made 	a 	firm decision 	to 	implement 	the
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change, 	the 	exclusive 	representative does not waive 	its 	right 	to
bargain by not 	pursuing negotiations. 	(San 	Francisco 	Community
College District 	(1979) 	PERB Decision No. 	105 at p. 	17; 	Arcohe
Union School District 	(1983) 	PERB Decision No. 	360 at p. 	11;
Morgan Hill Unified School District 	(1986) 	PERB Decision No. 	554a
at p. 	6.) 	It 	is undisputed in this 	case 	that 	the alleged
unilateral 	change 	occurred no 	later than 	in November 	1996, 	well
before the January 22, 	1997, 	bargaining session requested by
CSEA. 	CSEA's 	cancellation of 	that 	session and decision not 	to
pursue bargaining did not 	constitute 	a waiver 	of 	the 	right 	to
bargain, 	and did not 	bar 	CSEA from 	filing an unfair practice
charge 	alleging an unlawful 	unilateral 	change.
ORDER
The 	unfair practice 	charge and 	complaint 	in Case
No. 	SA-CE-947-S 	are DISMISSED WITHOUT LEAVE TO AMEND.
Member Dyer 	joined 	in 	this 	Decision.
Member Amador's 	dissent begins 	on page 	8.
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AMADOR, 	Member, 	dissenting: 	I dissent because I disagree
with 	the majority's 	opinion 	that 	this 	charge 	should be 	dismissed
at 	this 	time. 	After a careful 	review of 	the record, 	I have
decided 	that 	more 	information 	is 	necessary 	to 	reach a 	definitive
conclusion 	regarding whether 	the 	administrative 	law 	judge's 	(ALJ)
decision 	to dismiss 	is 	supportable and correct.
The 	Public 	Employment 	Relations 	Board 	(Board) 	has broad
authority 	to 	request 	further 	evidence 	or 	information we 	deem
necessary 	to 	assist 	us 	in 	completing 	our adjudicatory 	functions.
After 	considering various 	legal 	processes 	available 	to 	the 	Board,
I 	conclude that, 	in this 	case, 	remand is 	the most appropriate
method 	to acquire 	information 	regarding various 	questions 	that
were not 	fully addressed by the ALJ. 	By remanding 	this 	case 	it
will 	give 	the Board 	the 	greatest 	latitude 	to accomplish 	this
purpose.
Specifically, 	prior to making a definitive 	ruling 	in this
case, 	the Board should have 	information with regard to 	the
following 	issues:
1. 	Why did 	the 	State of 	California 	(Department 	of
Personnel Administration) 	(DPA) 	memo dated June 27,
19951 underline 	the word 	"not" 	rather than the word
10n June 27, 	1995, 	DPA issued a collective bargaining
agreement status 	report. 	It 	stated in part:
Represented 	employees 	may not 	receive 	union
leave, 	except where agreed to 	in negotiation
ground 	rules 	for union bargaining 	teams.
This means 	all 	pending and 	future union 	leave
requests may not be 	approved. 	All 	current
union leave must be 	terminated, 	and all
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"may"?
2. 	What 	was 	the actual past practice 	regarding how
specific persons 	were 	selected 	to 	receive 	union leave,
especially with 	regard 	to 	determination 	of 	the 	exact
number who were 	eligible 	to 	receive union leave?
3. 	What 	is 	the typical, 	or average, 	number of union
representatives 	who 	sit 	at 	the 	table during
negotiations 	for a 	successor CBA?
4. 	Did DPA approve 	any unpaid 	leave 	requests 	during 	the
time in question? 	If not, 	why not?
5. 	What 	is 	the effect 	of 	the California State Employees
Association, 	SEIU Local 	1000, 	AFL-CIO's 	(CSEA)
cancelling 	the 	scheduled bargaining 	session 	regarding
union leave?2
represented 	employees 	currently 	on union
leave must 	return to work. 	[Emphasis 	in
original.]
In conclusion, 	I would remand this 	case to the ALJ and
direct 	him to 	reopen 	the 	record 	to 	seek 	specific 	evidence
regarding 	the questions 	listed above. 	I would then direct 	the
ALJ 	to 	reevaluate 	the proposed decision 	in 	light 	of 	what 	the
parties 	offer.
2In late 	1996, 	CSEA requested a bargaining session to
discuss 	the matter of union leave 	for union officials, 	and a
session was scheduled for January 22, 	1997. 	However, 	CSEA
cancelled 	the 	session.
99

STATE 	OF 	CALIFORNIA
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA STATE 	EMPLOYEES
ASSOCIATION, 	SEIU LOCAL 1000,
AFL-CIO,
Charging 	Party,
v.
STATE 	OF 	CALIFORNIA 	(DEPARTMENT
OF PERSONNEL ADMINISTRATION),
Respondent.
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) 	Unfair 	Practice
Case No. 	SA-CE-947-S
PROPOSED DECISION
(5/11/98)
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Appearances: 	Harry Gibbons, 	Attorney, 	for California State
Employees Association, 	SEIU Local 1000, 	AFL-CIO; 	Paul Starkey,
Attorney, 	for State of 	California 	(Department 	of 	Personnel
Administration).
Before Allen R. 	Link, 	Administrative Law Judge.
PROCEDURAL 	HISTORY
On February 24, 	1997, 	the California State Employees
Association, 	SEIU Local 	1000, 	AFL-CIO 	(CSEA) 	filed an unfair
practice 	charge with the 	Public 	Employment 	Relations 	Board 	(PERB
or Board) 	against 	the 	State 	of 	California 	(Department 	of
Personnel Administration) 	(DPA). 	The charge alleged violations
of subdivisions 	(a), 	(b), 	(c) 	and 	(d) 	of section 3519, 	which is a
part of 	the Ralph C. 	Dills Act 	(Dills Act).1
1All 	section references, 	unless otherwise noted, 	are to the
Government 	Code. 	The Dills Act 	is 	codified at 	section 	3512 	et
seq. 	Subdivisions 	(a), 	(b), 	(c) 	and 	(d) 	of section 3519 state,
in pertinent part:
It 	shall be unlawful 	for the 	state to:
(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.
(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.
On March 	27, 	1997, 	the 	Office 	of 	the 	General 	Counsel 	of
PERB, 	after 	an 	investigation 	of 	the 	charge, 	issued 	a 	complaint
against 	DPA alleging violations 	of 	subdivisions 	(a), 	(b) 	and 	(c)
of 	section 	3519. 	On April 	22, 	1997, 	DPA answered the 	complaint
denying 	all 	material 	allegations 	and 	asserting 	affirmative
defenses.
On May 	16 	and December 	5, 	1997, 	informal 	conferences 	were
held 	in 	an 	attempt 	to 	reach voluntary 	settlement. 	No 	settlement
was 	reached. 	A 	formal 	hearing 	was 	held 	before 	the 	undersigned 	on
February 11, 	1998.
Each 	side 	prepared 	and 	submitted 	briefs. 	With 	the 	filing 	of
the 	last 	brief 	on April 	27, 	1998, 	the 	case 	was 	submitted 	for 	a
proposed 	decision.
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INTRODUCTION
CSEA complains 	of DPA's 	breach of 	a 	1995 	agreement 	to 	grant
union 	leave2 to 	a 	specified number of 	its 	Civil 	Service 	Division
(CSD) 	officers. 	DPA acknowledges the original agreement, 	but
asserts 	this 	agreement was modified, 	per a request 	from CSEA's
general 	manager. 	This modification transferred one 	of 	these
union leave positions 	to Perry Kenny 	(Kenny), 	in his position as
CSEA's 	newly elected president. 	Once 	this 	transfer was
completed, 	DPA has been, 	and continues to be, 	willing to grant
union 	leave 	status 	to one more position, 	as 	designated by CSEA.
However, 	CSEA has 	never designated which official 	shall 	receive
such union 	leave.
CSEA contends 	that 	Kenny's 	union 	leave 	was 	derived 	from 	some
authority other 	than 	the 	July 	1995 	agreement 	and 	its 	CSD 	officers
should be 	granted union 	leave 	irrespective 	of 	Kenny's 	status.
FINDINGS 	OF 	FACT
Jurisdiction
The 	parties 	stipulated 	to 	CSEA being 	a 	recognized employee
organization 	and DPA being 	a 	state 	employer within 	the 	meaning of
section 3513.
2Union leave permits an employee, 	while on leave, 	to
continue 	his/her 	employee 	status 	with 	full 	salary and benefits,
including 	seniority and retirement 	accruals. 	The 	state 	is
reimbursed 	for 	such 	costs 	by 	the 	employee's 	union.
Unpaid leave, 	however, 	permits an employee to go on leave,
thereby retaining his/her employment 	status, 	but 	does 	not 	permit
the 	payment 	of 	salary or 	crediting of 	seniority and 	retirement
accruals.
W
	3

Factual 	Background
On June 27, 	1995, 	in anticipation of the expiration of
various unit collective bargaining agreements 	(CBAs), 	David
Tirapelle 	(Tirapelle), 	director of DPA administration, 	issued a
collective bargaining status 	report. 	In 	it 	he 	stated:
5. 	Represented employees may not 	receive
union leave, 	except where agreed to 	in
negotiation 	ground 	rules 	for union bargaining
teams. 	This means 	all pending and future
union 	leave 	requests 	may not 	be 	approved.
All 	current 	union 	leave must 	be 	terminated,
and 	all 	represented 	employees 	currently on
union 	leave must 	return 	to work; 	[Emphasis
in original.]
It was 	DPA's belief 	that with the 	expiration of 	the 	CBAs 	all
authority for union leave 	expired. 	Therefore, 	any new union
leaves 	had 	to 	be 	requested 	from and agreed 	to by 	the 	appointing
authorities of 	the 	individual employees. 	However, 	it was
possible 	to grant 	such leave 	as 	a provision of 	bargaining ground
rules.
In mid-1995 	the 	state 	and CSEA, 	as 	the 	recognized employee
organization representative 	of 	nine bargaining units, 	were
starting to negotiate 	successor agreements. 	At 	some of 	these
sessions 	discussions 	arose 	regarding 	the 	leave 	status 	of 	Kenny
and Barbara Wilson 	(Wilson), 	the 	CSD alternate 	deputy director
for bargaining. 	These 	officials 	coordinated CSEA's 	negotiating
efforts. 	To 	avoid multiple 	and potentially conflicting 	leave
status 	decisions 	from various 	negotiating 	tables 	for 	these 	two
officials, 	on July 11, 	1995, 	Rick McWilliam 	(McWilliam), 	DPA's
chief of labor relations, 	and Tut Tate 	(Tate), 	CSEA's civil
A	4

service 	division administrator, 	negotiated a 	leave 	policy that
would apply to 	all 	nine bargaining units. 	During 	these
discussions 	there was 	no mention of 	union 	leave 	for anyone 	other
than Kenny and Wilson. 	The 	ultimate purpose 	of 	the 	agreement 	was
to permit 	CSEA's 	leadership 	to be 	available 	to 	coordinate 	the
actual 	bargaining. 	There was 	no evidence proffered that 	the
other 	civil 	service 	alternate 	deputy directors 	were 	directly
involved 	in bargaining.
When Tate 	sent 	McWilliam a 	signed copy of 	the 	agreement, 	she
copied only Kenny, 	Wilson and Joan Bryant, 	CSEA's 	statewide
bargaining 	manager.
This 	agreement 	started off 	with 	the 	following 	statement:
A. 	The 	Civil 	Service 	Division Director 	and
Deputy 	Civil 	Service 	Division 	officers 	shall
be 	granted 	leave 	only 	to 	attend 	formal
bargaining 	sessions 	subject 	to 	the 	following
conditions :[3]
(Emphasis 	added.)
Below this 	statement 	were 	a 	series 	of 	conditions 	that 	had to
be 	met 	in order 	for 	such 	leave 	to be 	granted. 	The 	conditions
concerned 	such 	subjects 	as 	departmental 	operational 	needs,
attendance 	at 	negotiating sessions, 	and advance notice 	to the
involved 	individuals' 	appointing powers 	of 	such attendance.
Attached to 	the 	typewritten copy of 	this 	agreement 	was 	a
hand written addendum. 	It 	contained seven paragraphs. 	The 	first
3McWilliam 	states 	the plural 	"officers" 	refers 	only to 	the
CSD director and deputy officer, 	insisting 	if 	the 	singular were
used 	it 	would be 	grammatically 	incorrect. 	This 	interpretation 	is
not 	credited.
55

two exclusively concerned Wilson. 	The third, 	fourth, 	and sixth
paragraphs 	exclusively concerned Kenny. 	Paragraph 	five 	concerned
the 	acquisition of 	and payment 	for caucus 	rooms. 	The 	seventh and
last 	paragraph 	stated:
With this 	agreement 	there 	is 	no need to
mention either Barbara 	[Wilson] 	or Perry
[Kenny] 	in any ground rules.
At 	that 	time 	CSEA had two 	CSD officers 	in addition 	to 	Kenny
and Wilson: 	(1) 	alternate deputy director for 	finance, 	Barbara
Glass 	(Glass); 	and 	(2) 	alternate deputy director for district
labor councils, 	Bernice Rankinas 	(Rankinas). 	Tate believed that
previous 	agreements 	included provisions 	for all 	four officers 	to
be 	released on union 	leave. 	Charging party provided no
documentation 	to 	support 	this 	assertion.4
Shortly after 	the 	agreement 	was 	signed a 	dispute 	arose
regarding 	release 	time 	for 	Kenny. 	CSEA filed an unfair practice
charge and a request 	for 	injunctive relief, 	Case No. 	SA-CE-760-S
and I.R. 	No. 	3 70, 	against DPA on his behalf. 	On September 13,
1995, 	the parties 	signed a settlement 	agreement, 	redefining some
of 	their 	rights 	and 	obligations 	with 	regard 	to 	Kenny's 	release
time. 	This 	settlement 	agreement 	included CSEA's withdrawal 	of
its 	charges. 	It 	also contained a clause 	stating that 	any
"disputes arising out of this Settlement Agreement, 	. 	. 	. 	shall
4Shortly 	after 	Kenny 	received 	his 	union 	leave 	Yolanda
Solari, 	CSEA's president, 	requested McWilliam grant her union
leave. 	He 	denied her request, 	stating that 	the 	agreement 	called
for only Kenny and Wilson 	to 	receive 	union 	leave.
66

be 	submitted to 	arbitration." 	The 	attachment 	to 	the 	settlement
agreement, 	in paragraph 1, 	stated:
1. 	This 	agreement 	replaces 	the July 11,
1995, 	agreement between the Department of
Personnel 	Administration 	and 	the 	California
State Employees Association as 	it 	applies 	to
Perry Kenny. 	The July 11, 	1995, 	agreement
continues 	to be 	in effect 	for Barbara Wilson.
The 	attachment went on to set 	forth, 	in detail, 	conditions
under which Kenny would be permitted to 	receive 	union 	leave.
In October 1996, 	CSEA held its General 	Council, 	at which
time 	new officers were 	elected. 	The 	new CSD director was 	Jim
Hard 	(Hard); 	the 	alternate 	director 	for bargaining was 	Salome
Ontiveros 	(Ontiveros); 	alternate director for finance was 	Cathy
Hackett 	(Hackett); 	and the 	alternate 	director 	for District 	Labor
Councils was Nadie Savage 	(Savage). 	On October 17, 	1996, 	three
days after the election, 	Tate, 	on behalf of CSEA, 	notified
McWilliam of 	these 	changes.
On October 25, 	1996, 	CSEA's Acting General Manager James W.
Milbradt 	(Milbradt) 	wrote Tirapelle. 	In that 	letter he 	stated:
CSEA requests 	the 	current 	agreement 	between
the 	Department 	of 	Personnel 	Administration
and 	CSEA regarding 	release 	time 	off 	for Mr.
Kenny on union leave be continued. 	. 	. 	.
Milbradt 	stated 	that 	Kenny would 	"be 	involved 	in bargaining
in 	addition to 	the 	other duties performed by our president."
DPA agreed with this 	request, 	and allocated one 	of 	the 	two
existing union 	leave 	positions 	to 	Kenny. 	McWilliam 	interpreted
CSEA's request 	to mean that 	Kenny, 	as president, 	was going to
execute 	some 	of 	the 	duties 	previously assigned to 	the 	CSD
77

director. 	He 	believed that 	after 	this 	modification 	to 	its
original 	agreement, 	CSEA still 	had a 	right 	to designate one more
official 	to 	receive 	union 	leave.
At 	approximately the 	same 	time, 	or shortly thereafter, 	Tate
requested union 	leave 	for Hard and Hackett. 	McWilliam 	inquired
as 	to what would happen to Kenny if 	he granted her request. 	He
said he 	only had authority 	for union 	leave 	for 	two 	employees, 	not
three. 	She 	could have her choice, 	but 	could only have 	two on
union 	leave 	at 	one 	time. 	He 	said any different 	arrangement 	would
have 	to be 	negotiated.
Tate 	insists DPA, 	prior to mid-1997, 	never told her the
agreement 	only applied to 	two 	CSD officers. 	She 	states 	that 	in
November of 	1996, 	McWilliam merely denied union 	leave 	to 	the 	CSD
officers, 	stating 	she would have 	to talk to their individual
departments 	about 	obtaining 	some 	sort 	of 	leave 	for 	them. 	She
remembers 	citing 	the 	July 	1995 	agreement 	in 	support 	of 	her
request, 	stating 	the 	new officers were 	entitled to 	the 	same 	union
leave 	status 	as 	their predecessors. 	She 	insists 	that 	at 	the 	time
there 	was 	no 	discussion of 	Kenny's 	leave 	status 	by either 	side.
On October 17, 	1996, 	Tate notified the appointing powers 	for
Hard 	and 	Ontiveros 	that 	they would periodically be 	taking 	"union
leave" 	in order to meet 	their CSEA obligations. 	She
simultaneously 	contacted 	the 	appointing powers 	for 	Hackett 	and
Savage, 	explaining that 	these 	employees would periodically be
taking 	"unpaid 	leave" 	in order to meet 	their CSEA obligations.
88

McWilliam 	insists 	that 	the 	first 	time 	he 	heard 	CSEA request
union leave 	for all 	four of 	its 	CSD officers was 	at 	the 	formal
hearing 	in this 	case. 	His previous 	discussions with Tate were
limited 	to whether 	two 	or 	three 	CSEA officials 	were 	entitled 	to
union 	leave. 	He 	admits 	Tate 	kept 	insisting Kenny was 	a 	separate
matter 	and 	she 	was 	only requesting 	leave 	for Hard and Hackett.
He 	countered with 	a 	statement 	that 	Kenny could not 	be 	excluded
from their discussion 	as 	his 	union 	leave 	status 	derived 	from the
same 	document 	and he 	only had authority to permit 	two, 	and not
three, 	CSEA officials 	to have union leave.
CSEA requested a bargaining 	session 	to 	discuss 	the 	matter
of union 	leave 	for union officials. 	It was 	scheduled 	for
January 22, 	1997. 	However, 	CSEA ultimately cancelled the 	session
and filed its charge on February 24, 	1997.
McWilliam has 	never 	received 	a 	notification 	from 	CSEA as 	to
which official 	should 	receive 	the 	remaining union-leave 	slot.
ISSUES
1. 	Did DPA, 	when it 	failed to grant union leave 	status 	to
Hard and Hackett, 	refuse 	or 	fail 	to meet 	and confer 	in good
faith, 	thereby violating subdivision 	(c) 	of 	section 3519?
2. 	Did DPA, 	when it 	failed to grant 	union leave 	status 	to
Hard and Hackett, 	discriminate 	against 	them and/or 	interfere 	with
their exercise 	of protected rights, 	thereby violating 	subdivision
(a) 	of section 3519?
9

CONCLUSIONS 	OF 	LAW
ISSUE NO. 	1 	Did DPA, 	when it 	failed to grant union leave 	status
to Hard and Hackett 	refuse 	or 	fail 	to meet 	and confer 	in good
faith, 	thereby violating subdivision 	(c) 	of 	section 3519?
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.)
Under 	subdivision 	(c) 	of 	section 3519 	the 	state 	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 	CBA
or by past 	practice. 	(Anaheim City School 	District 	(1983) 	PERB
Decision No. 	364; 	Pittsburg Unified School District 	(1982) 	PERB
Decision No. 	199.)
CSEA alleges 	that 	DPA reneged on an 	agreement 	to provide
union 	leave 	to 	its 	CSD officers when 	it 	refused to provide 	such
leave 	to Hard and Hackett. 	DPA agrees 	it 	entered 	into 	the
original 	agreement, 	but 	insists 	its 	terms were 	changed when 	it
agreed 	to 	a 	CSEA 	requested modification.
CSEA contends 	that 	both Hard 	and Hackett 	are 	entitled 	to
union 	leave 	because 	the 	July 	1995 	agreement 	granted 	such 	leave 	to
all 	CSD officers. 	There 	are 	two 	facts 	that 	support 	this
contention. 	First, 	the 	agreement used the plural when it 	stated
10

that 	"officers 	shall 	be 	granted 	leave." 	Second, 	the
uncorroborated 	statement 	by 	Tate 	that 	all 	four 	CSD 	officers
received 	union 	leave 	in 	the 	past, 	which 	could 	reasonably 	lead 	her
to 	believe 	that 	DPA was 	covering 	them 	in 	this 	new 	agreement.
There 	are, 	however, 	a 	series 	of 	incidents 	that 	support 	DPA's
position:
(1) 	The 	very 	essence 	of 	the 	agreement 	was 	to 	provide 	CSEA
leadership 	with 	time 	off 	to 	assist 	its 	bargainers. 	This 	is
apparent 	from 	the 	evidence 	showing 	the 	reason 	for 	the 	agreement
was 	to 	avoid 	multiplicity 	of 	leave 	decisions 	throughout 	the 	nine
units 	represented 	by 	CSEA. 	There 	was 	no 	evidence 	that 	alternate
CSD 	directors 	for 	finance 	or 	district 	labor 	councils 	had 	any
direct 	involvement 	with 	bargaining.
(2) 	There 	was 	no mention, 	by either 	side, 	of 	any 	CSD
officer 	other 	than 	Kenny 	or 	Wilson 	during 	negotiations 	of 	the
July 	1995 	agreement.
(3) 	When 	Tate 	sent 	McWilliam 	the 	signed 	July 	1995 	agreement
she 	failed 	to 	send 	a 	copy 	to 	any 	CSD 	officer 	other 	than 	Kenny 	and
Wilson. 	If 	this 	agreement 	was 	to 	define 	each 	CSD 	officer's 	right
to 	union 	leave, 	it 	is 	logical 	to 	expect 	her 	to 	send 	a 	copy 	to
every 	person 	to 	whom 	the 	agreement 	granted 	specified 	rights.
(4) 	In 	the 	addendum 	to 	the 	agreement 	a 	specific 	provision
was 	included 	that 	neither 	Wilson 	nor 	Kenny 	need 	be 	mentioned 	in
any 	ground 	rules. 	This 	provision 	did 	not 	reference 	CSD 	officers,
in 	general, 	but 	only Wilson 	and 	Kenny.
11

(5) 	When 	the 	parties 	entered 	into 	a 	settlement 	agreement 	in
September 	1995 	with 	regard 	to 	Kenny's 	circumstances, 	they
specifically 	stated 	that 	the 	original 	agreement 	would 	still 	apply
to Wilson, 	not 	all 	CSD officers.
(6) 	In 	October 	1996 	Tate 	requested 	union 	leave 	for 	Hard 	and
Ontiveros 	and 	unpaid 	leave 	for 	Hackett 	and 	Savage. 	This 	comports
with 	McWilliam's 	testimony 	that 	he 	consistently 	told 	CSEA 	that
only 	two 	CSD 	officers 	were 	entitled 	to 	union 	leave 	and 	is
contrary 	to 	Tate's 	contention 	that 	McWilliam, 	prior 	to 	mid-1997,
never 	told 	her 	that 	the 	agreement 	only 	applied 	to 	two 	CSD
officers.
These 	six 	independent 	circumstances 	support 	DPA's 	position
that 	it 	did 	not 	agree 	in 	July 	1995 	to 	grant 	union 	leave 	to 	all
four 	CSD 	officers. 	They 	are 	sufficiently persuasive 	to 	outweigh
the 	two 	facts 	supporting 	CSEA's 	contention.
Once 	it 	has 	been 	determined 	that 	only 	two 	CSD 	officers 	were
granted 	union 	leave, 	it 	becomes 	clear 	that 	DPA 	did 	not 	renege 	on
its 	agreement, 	but 	rather 	complied with 	it, 	as 	modified 	by 	a
request 	from 	CSEA.5 Such 	compliance 	does 	not 	constitute 	a
failure 	"to 	meet 	and 	confer 	in 	good 	faith 	with 	a 	recognized
employee 	organization." 	Therefore, 	it 	is 	determined 	that 	when
5 When 	Milbradt 	requested 	union 	leave 	for 	Kenny 	he 	requested
the 	"current 	agreement" 	between 	DPA 	and 	CSEA 	regarding 	union
leave 	be 	continued. 	He 	did 	not 	ask 	for 	a 	new 	agreement 	or 	an
additional 	union 	leave 	position 	be 	added 	to 	the 	existing 	ones, 	he
merely 	asked 	that 	the 	current 	union 	leave 	for 	Kenny 	be 	continued,
regardless 	of 	his 	new position.
12

DPA declined to grant 	union 	leave 	to Hard and Hackett, 	it 	did not
violate 	subdivision 	(c) 	of 	section 3519.
ISSUE NO. 	2 	Did DPA, 	when it 	failed to grant union leave 	status
to Hard and Hackett, 	discriminate 	against 	them and/or 	interfere
with their exercise 	of protected rights, 	thereby violating
subdivision 	(a) 	of 	section 3519?
Applicable 	Test
The Board 	in Carlsbad Unified School 	District 	(197 9) 	PERB
Decision No. 	89 	(Carlsbad), 	set 	forth the following test 	for
alleged violations 	of 	an 	employer's 	duty 	regarding 	discrimination
against 	or 	interference 	with 	employees:6
1. 	A single 	test 	shall 	be 	applicable 	in all
instances 	in which violations 	of 	section
3543.5(a) 	are alleged;
2. 	Where 	the 	charging party establishes
that 	the 	employer's 	conduct 	tends 	to or does
result 	in 	some 	harm to 	employee 	rights
granted under the 	EERA, 	a prima 	facie 	case
shall be deemed to exist;
3. 	Where 	the harm to the employees' 	rights
is 	slight, 	and the employer offers
justification based 	on 	operational 	necessity,
the 	competing 	interest 	of 	the 	employer and
the 	rights 	of 	the 	employees will 	be balanced
and 	the 	charge 	resolved 	accordingly;
4. 	Where 	the 	harm is 	inherently destructive
of employee rights, 	the employer's conduct
will 	be 	excused only on proof 	that 	it 	was
occasioned 	by 	circumstances 	beyond 	the
employer's 	control 	and that 	no 	alternative
course of 	action was 	available;
5. 	Irrespective of 	the 	foregoing, 	a charge
will 	be 	sustained where 	it 	is 	shown that 	the
employer would not 	have 	engaged 	in the
6Although 	this 	decision was 	issued 	in 	an Educational
Employment Relations Act 	(EERA) 	case, 	the 	language 	is 	identical
to 	that 	in the 	Dills Act 	and the precedents 	are 	controlling.
(EERA is 	codified at 	section 3540 	et 	seq.)
13

complained of 	conduct 	but 	for 	an unlawful
motivation, 	purpose or intent. 	[Emphasis
added.]
In Novato Unified School 	District 	(1982) 	PERB Decision
No. 	210 	(Novato), 	the Board set 	forth the test 	for retaliation or
discrimination 	in 	light 	of 	the National 	Labor Relations 	Board
decision in Wright Line, 	Inc. 	(1980) 	251 NLRB 1083 	[105 LRRM
1169] 	enforced in part 	(1st Cir. 	1981) 	662 	F.2d 899 	[108 	LRRM
2513]. 	Under Novato, 	unlawful motivation must be proven in order
to 	find a violation.
In both cases, 	a nexus 	or connection must be 	demonstrated
between 	the 	employer's 	conduct 	and the 	exercise 	of 	a protected
right, 	resulting 	in harm or potential 	harm to that 	right.
In order to establish a prima 	facie 	case, 	charging party-
must 	first 	prove 	that 	the 	subject 	employee 	engaged 	in protected
activity.7 Next 	it 	must prove 	that 	the person (s) 	who made 	the
decision 	that 	resulted 	in 	the 	harm was 	aware 	of 	such 	activity.
Lastly, 	it must prove 	that 	the 	subject 	adverse 	action was 	taken,
in whole or in part, 	as 	a result 	of 	such protected activity.
Proving 	the 	existence 	of 	unlawful 	motivation 	can be
difficult. 	PERB 	acknowledged that 	when 	it 	stated the 	following
in Carlsbad:
7Section 3515 	states 	that:
. 	. 	. 	state employees shall have the right to
form, 	join, 	and participate 	in the activities
of 	employee 	organizations 	of 	their own
choosing 	for the 	purpose 	of 	representation
on 	all 	matters 	of 	employer-employee
relations. . . .
14

Unlawful motivation, 	purpose or intent 	is
essentially a 	state 	of mind, 	a 	subjective
condition generally known only 	to 	the 	charged
party. 	Direct 	and affirmative proof 	is 	not
always 	available 	or possible. 	However,
following 	generally 	accepted 	legal 	principles
the presence 	of 	such unlawful 	motivation,
purpose 	or 	intent 	may be 	established by
inference 	from the 	entire 	record. 	[Fn.
omitted.]
In addition, 	the Board in Novato 	set 	forth examples 	of 	the
types 	of 	circumstances 	to be 	examined 	in a determination of
whether union animus 	is 	present 	and a motivating 	factor 	in the
employer's action(s). 	These circumstances are: 	(1) 	the presence
of 	any disparate treatment 	of 	charging party; 	(2) 	the proximity
of 	time 	between 	the 	participation 	in protected 	activity 	and 	the
adverse action; 	(3) 	any inconsistent, 	contradictory or vague
explanation of the employer's action(s); 	(4) 	any departure 	from
established procedures or standards; 	and 	(5) 	any inadequate
investigation. 	(See 	also Baldwin 	Park Unified School 	District
(1982) 	PERB Decision No. 	221.)
Unlawful 	Motivation
Hard 	and Hackett 	are 	the 	two 	CSD 	officers/employees 	directly
affected by DPA's 	allegedly improper action. 	Therefore, 	the
elements 	of 	the 	test 	will 	be 	examined as 	they affect 	these 	two
individuals.
The 	first element of the charge, 	the employees'
participation 	in protected activity, 	is 	not 	disputed by DPA.
Their 	status 	as 	officers 	of 	a 	recognized employee 	organization
fulfills 	this 	requirement. 	The 	second element, 	DPA's knowledge
of 	such participation 	is 	also not 	disputed by DPA. 	The 	evidence
15

clearly 	shows 	that 	DPA was 	notified of 	their new 	leadership
status 	shortly after 	the 	election.
The 	third element, 	that 	DPA's 	failure 	to grant 	them union
leave 	status was due, 	in whole or in part, 	to their protected
activity, 	is 	the primary issue 	of 	contention with regard to 	an
unlawful 	motivation 	charge.
The 	first 	circumstance 	to be 	examined 	is 	the presence 	of 	any
disparate 	treatment. 	The 	fact 	that 	Kenny and Wilson, 	the
previous 	incumbents 	in the 	subject 	offices were 	granted union
leave, 	while Hard and Hackett were not, 	would seem to 	support 	an
initial 	determination of disparate treatment. 	However, 	there was
no 	evidence 	that 	DPA rejected either Hard or Hackett, 	as
individuals. 	Nor was 	there 	any evidence 	that 	DPA harbored any
animus 	toward either of 	these 	individuals.
To 	the 	contrary, 	the 	evidence 	shows 	that 	DPA expressed no
opinions 	as 	to who 	received union 	leave. 	It 	merely expressed an
unwillingness 	to permit 	more 	than 	two 	CSEA officers/employees 	to
receive union leave. 	Therefore, 	the 	treatment 	received by Hard
and Hackett 	was 	not 	disparate 	due 	to 	their protected activities,
but 	rather due 	to DPA's 	refusal 	to 	increase 	the 	number of 	union
leave 	recipients. 	In other words, 	there was no evidence 	showing
a 	nexus 	between Hard 	and Hackett's 	exercise 	of 	protected 	rights
and the employer's 	conduct. 	Therefore, 	this type of employer
action 	is not 	"disparate 	treatment", 	as 	the 	term is used 	in a
labor relation sense, 	and does 	not 	support 	an inference of
unlawful 	motivation.
16

- -
Similarly, 	the 	evidence with regard to 	the 	timing of 	the
employer's 	action, 	initially supports 	a determination that
discrimination was present. 	It 	is 	clear that 	shortly after Hard
and Hackett 	were 	elected 	the 	actual 	number 	of 	CSEA officers 	on
union leave were 	reduced 	from two 	to one. 	However, 	the 	reasoning
set 	forth, 	supra, 	regarding disparate treatment 	is equally
applicable 	to 	the 	timing 	circumstance. 	There was 	no 	evidence
proffered 	showing 	that 	DPA had a 	negative 	reaction 	to 	the
election 	of 	Hard and Hackett 	and/or 	that 	such reaction was 	the
proximate 	cause 	for the 	reduction in union 	leaves. 	It 	is
possible 	the 	timing of 	the 	election and 	the 	union 	leave
diminution 	could 	infer 	such a 	negative 	motivation.
However, 	the 	Board has 	determined that 	timing alone 	cannot
support 	an inference 	of 	unlawful 	motivation. 	(Moreland
Elementary School 	District 	(1982) 	PERB Decision No. 	227.)
There was 	no 	evidence proffered regarding 	(1) 	inconsistent
explanations of the employer's action(s), 	(2) 	departure from
established procedures or standards, 	or 	(3) 	inadequate
investigation(s).
The 	above 	analysis 	leads 	to an 	inescapable 	conclusion 	that
DPA's 	failure 	to provide 	union 	leave 	for Hard and Hackett 	was 	not
the 	result 	of unlawful motivation.
Interference
CSEA contends 	that 	irrespective 	of 	the 	presence 	or 	absence
of 	DPA's motivation, 	its 	actions 	interfered with its 	right 	to
select negotiating representatives of 	its 	choice, 	i.e., 	Hard and
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Hackett. 	Granted its 	failure 	to obtain union 	leave 	for two of
its 	negotiators 	would constitute 	harm to 	the 	individuals'
employment 	status. 	However, 	the 	issue 	is whether the 	two
employees were 	entitled 	to union 	leave 	- 	not whether they would
receive 	any type 	of 	leave. 	Assuming Hard and Hackett 	were 	able
to 	receive 	unpaid 	leave 	to execute 	their duties, 	CSEA would 	still
receive 	the 	benefit 	of 	these 	employees 	in 	their bargaining
efforts. 	The 	only harm would be 	to the 	employees' 	employment
status. 	Such harm could be 	offset 	by an 	increased allocation of
CSEA's 	resources 	to 	the 	employees 	to make 	them whole. 	The 	harm,
therefore, 	would be 	slight. 	This 	harm is more 	than offset by the
employer's 	legitimate 	right 	to preserve 	its position of 	allowing
no more 	than 	two officials 	to 	receive union 	leave.
Therefore, 	based on the above analysis, 	it 	is determined
that 	DPA's 	failure 	to provide 	union 	leaves 	to Hard and Hackett
did not 	interfere 	with 	such employees 	because 	of 	their 	exercise
of protected rights.
Based on the 	above 	analyses, 	it 	is 	concluded that 	DPA's
failure 	to 	grant 	union 	leave 	to Hard 	and Hackett 	did not 	violate
subdivision 	(a) 	of section 3519.
Allegation 	Regarding 	Employee 	Organization 	Rights
The 	evidence 	failed 	to 	support 	CSEA's 	allegations 	regarding
violations of 	subdivisions 	(a) 	and 	(c) 	of 	section 3519.
Therefore, 	there 	is 	insufficient 	evidence 	to support 	for 	its
contention that 	rights guaranteed to 	it 	by the 	Dills Act 	were
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denied. 	Consequently, 	it 	is determined that there was no
violation of 	subdivision 	(b) 	of 	section 3519.
SUMMARY
Based on the 	foregoing findings 	of 	fact, 	conclusions 	of 	law
and a 	thorough examination of 	the 	entire 	record, 	it 	is 	determined
that 	there 	is 	insufficient 	evidence 	upon which to 	find 	that 	DPA
has violated the Dills Act. 	Therefore, 	the charges and their
accompanying 	complaint 	must 	be 	dismissed.
PROPOSED 	ORDER
Upon the 	foregoing 	findings of 	fact, 	conclusions 	of 	law and
the entire record in this 	case, 	it 	is ordered that 	the unfair
practice 	charge 	in Case No. 	SA-CE-947-S, 	California State
Employees Association, 	SEIU Local 	1000, 	AFL-CIO v. 	State of
California 	(Department of 	Personnel Administration), 	and its
companion 	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 20 	days 	of 	service
of 	this 	Proposed Decision. 	In accordance with PERB Regulations,
the 	statement 	of 	exceptions 	should 	identify by page, 	citation or
exhibit number the portions of 	the records, 	if 	any, 	relied upon
for such exceptions. 	(See Cal. 	Code of Regs., 	tit. 	8, 	sec.
32300) . 	A document 	is considered 	"filed" 	when actually received
before 	the 	close 	of business 	(5:00 	p.m.) 	on the 	last 	day set 	for
filing 	". 	. 	.or when sent by telegraph or certified or Express
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United States mail, 	postmarked not 	later than 	the 	last 	day set
for filing. 	. 	." 	(See Cal. 	Code of Regs., 	tit. 	8, 	sec. 	323135;
Code of 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 of Regs., 	tit. 	8, 	secs. 	32300,
32305, 	and 32410.)
Allen 	R. 	Link
Administrative Law 	Judge
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