State of California (Department of Corrections) (PERB 1317S)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA STATE 	EMPLOYEES
ASSOCIATION,
Charging 	Party,
v.
STATE 	OF 	CALIFORNIA 	(DEPARTMENT
OF 	CORRECTIONS),
Respondent.
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) 	Case No. 	LA-CE-399-S
PERB Decision No. 	1317-S
March 5, 	1999
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Appearances; 	Brian K. 	Taylor, 	Attorney, 	for California State
Employees Association; 	State 	of 	California 	(Department 	of
Personnel Administration) 	by Paul M. 	Starkey, 	Labor Relations
Counsel, 	for State of California 	(Department of Corrections).
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 	State of 	California 	(Department 	of 	Corrections) 	(CDC or
State) 	to a proposed decision by a 	PERB administrative 	law judge
(ALJ). 	The ALJ found that the State violated section 3519(a),
(b) 	and 	(c) 	of the Ralph C. 	Dills Act 	(Dills Act)1 by
1The Dills Act 	is 	codified at 	Government 	Code 	section 	3512
et 	seq. 	Unless 	otherwise 	indicated, 	all 	statutory references
herein are to the Government Code. 	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

unilaterally modifying 	its 	overtime policy 	for nurses 	represented
by the 	California State 	Employees Association 	(CSEA) 	at 	three
correctional 	institutions.
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 ALJ's 	proposed decision and 	the 	filings 	of 	the
parties. 	The Board hereby 	reverses 	the proposed decision and
dismisses 	the unfair practice 	charge 	and 	complaint 	in accordance
with 	the 	following 	discussion.
BACKGROUND
CSEA is 	the 	exclusive 	representative 	of 	the nurses 	in State
Bargaining Unit 	17. 	This 	case 	involves 	nurses who are 	employed
at the California Institution for Men 	(CIM) , 	the California
Institution 	for Women 	(CIW), 	and the California Rehabilitation
Center 	(CRC), 	three correctional 	institutions within CDC.
CSEA and 	the 	State 	are parties 	to a 	collective bargaining
agreement 	(CBA) 	with a negotiated term of July 1, 	1992 	through
June 	30, 	1995. 	The parties are currently engaged in negotiations
over a 	successor agreement. 	During bargaining 	over 	the 	1992-95
CBA, 	both the 	State 	and CSEA expressed 	interest 	in reducing 	the
amount 	of mandatory overtime 	assigned 	to nurses 	at 	CDC
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institutions. 	In addition, 	CSEA wanted to change 	the 	system
under which voluntary overtime 	was 	allocated, 	and 	instead
implement 	a 	rotational 	system for overtime 	assignment. 	The 	State
wanted to be able 	to make greater use 	of 	registries 	of 	non-state
employee 	nurses 	to meet workload demands. 	A nurse 	registry 	is 	a
private 	organization which has 	a 	roster 	of 	local 	nursing
personnel 	available 	for daily employment 	assignments. 	The
registry contracts with various 	employers, 	including the State,
to provide nurses 	on a temporary basis.
The 	parties 	1992-95 	CBA 	contained 	the 	following provisions
within Article 20 	- 	Hours of Work and Overtime:
20.10 	Overtime 	Scheduling
a. 	The Departments 	recognize 	and understand
the 	importance 	of 	reducing mandatory 	overtime
to Registered Nurses. 	To this 	end, 	the
Departments 	will 	make 	every 	effort 	to
schedule 	staff 	in a manner that 	will 	reduce
the 	need 	for mandatory overtime.
b. 	Upon request, 	and where practicable, 	the
State 	shall, 	upon consultation with the
Union, 	establish a system to request 	and
utilize 	qualified volunteers 	to perform
overtime 	work 	from within 	the 	appropriate
work area(s). 	Through the establishment of
such a 	system, 	the 	State will 	endeavor to
reduce 	the 	amount 	of mandatory overtime 	and
number of mandatory holdovers, 	distribute
overtime 	fairly 	insofar as 	circumstances 	of
health and safety permit, 	and provide
employees 	notice 	of 	possible 	or actual
overtime assignments. 	The State 	shall 	also
consider the use of 	intermittents,
registries, 	or float pools.
c. 	The State agrees 	to make 	reasonable
efforts 	to utilize 	this 	overtime 	scheduling
system prior 	to 	requiring mandatory 	overtime.
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20.15 	Overtime 	CDC/CYA 	[California 	Youth
Authority]
CDC and CYA will, 	by August 30, 	1992,
establish 	a 	Labor/Management 	Committee 	to
develop 	a 	policy 	and procedures 	for 	the
distribution 	of 	voluntary 	and mandatory
overtime.
Pursuant 	to 	section 20.15 	of 	the 	CBA, 	the Labor/Management
Committee met 	and agreed 	in the 	latter part 	of 	1993 	to an
overtime policy side 	letter which states, 	in pertinent part:
Bargaining Unit 	17 	Overtime 	Policy
In accordance with Section 20.10 	of 	the 	1992-
95 	Bargaining Unit 	17 Memorandum of
Understanding 	. 	. 	. 	the California Department
of 	Corrections 	(CDC) 	recognizes and
understands 	the 	importance 	of 	reducing
mandatory overtime 	to Unit 	17 	employees. 	CDC
will 	strive 	to make 	efforts 	to 	schedule 	staff
in manners 	that will 	reduce 	the 	need 	for
mandatory 	overtime.
As a result of 	this commitment, 	CDC, 	upon
consultation with CSEA, 	establishes 	the
following 	system to 	request 	and utilize 	Unit
17 	nursing 	staff 	to perform overtime work
within the appropriate work area(s). 	Through
the 	establishment 	of 	the 	following 	system,
CDC will 	endeavor to 	reduce 	the amount 	of
mandatory 	overtime 	and number 	of 	mandatory
holdovers; 	distribute 	overtime 	fairly 	insofar
as 	circumstances 	of 	health and 	safety permit;
and provide 	employees 	notice 	of 	possible 	or
actual 	overtime assignments. 	This policy
does 	not 	preclude 	CDC 	from utilizing
permanent 	intermittents, 	registries as an
alternative 	to overtime.
When 	an 	overtime 	assignment 	becomes
available, 	it will be the policy of 	the CDC
to attempt 	to 	fill 	the assignment by the use
of the voluntary overtime roster. 	. 	. 	. 	When
there 	are 	no names 	listed on 	the 	overtime
roster, 	and no other means available 	to 	fill
the assignment, 	(permanent 	intermittents,
registries) 	it will be necessary to require
involuntary 	overtime.
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CSEA asserts 	that 	the 	side 	letter 	requires 	CDC 	to offer
overtime 	assignments 	to nurses whose 	names 	appear on 	the
volunteer 	overtime 	roster prior 	to utilizing permanent
intermittent 	or 	registry nurses 	to meet 	a 	staffing need. 	CSEA
states 	that 	this was 	the 	clear 	intent 	and understanding 	of 	the
parties 	in agreeing 	to the 	side 	letter.
CSEA states 	that 	CDC 	offered 	overtime 	assignments 	consistent
with 	this 	clear 	intent 	and understanding 	for some 	time 	following
the agreement 	to the 	side letter in late 	1993. 	However, 	CDC
gradually began changing 	the 	overtime assignment policy until, 	in
late 	1996, 	CDC was 	routinely offering assignments 	to registry
nurses 	before making voluntary 	overtime 	available 	to 	staff
nurses.
On April 	8, 	1997, 	CSEA filed the 	instant unfair practice
charge 	alleging 	that 	CDC unilaterally 	changed 	the 	overtime
assignment policy for nurses at 	CIM, 	CIW and CRC, 	and thereby
violated 	the Dills Act.
CDC 	responds 	by 	offering a different version 	of 	the meaning
of 	the 	overtime policy side 	letter. 	CDC notes 	that 	a primary
purpose 	of 	the 	side 	letter was 	to establish a 	system for 	the
equitable 	distribution of 	overtime 	assignments 	and provide 	for a
reduction 	in mandatory overtime. 	In accomplishing 	this purpose,
the 	side 	letter contains 	the 	specific 	reference 	to utilizing
permanent 	intermittent 	or 	registry nurses 	as 	an alternative 	to
overtime, 	and gives 	CDC the 	clear right 	to use 	those means 	of
meeting 	staffing needs 	in lieu 	of 	overtime assignment 	of 	staff
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nurses. 	Therefore, 	CDC asserts, 	the 	conduct alleged by CSEA to
be unlawful 	is 	expressly authorized by the 	side 	letter.
DISCUSSION
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
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 	State
(1978) 	PERB Decision No. 	51 at pp. 	5-6 	(Pajaro Valley); 	Grant
Joint Union High School 	State 	(1982) 	PERB Decision No. 	196 	at
p. 	10.)
As 	noted above, 	the 	State 	and CSEA were parties 	to a 	CBA
with a term of July 1, 	1992 	through June 30, 	1995. 	Pursuant 	to
that 	CBA, 	the parties 	negotiated and 	reached agreement 	on an
overtime policy side 	letter in 1993. 	It 	is 	a 	fundamental 	rule of
labor 	law that 	certain terms 	and 	conditions 	of 	employment 	remain
in 	effect 	following 	expiration 	of 	a 	CBA during 	the parties'
negotiations 	over a 	successor agreement. 	(State 	of 	California
(Department 	of 	Forestry and Fire Protection) 	(1993) 	PERB Decision
No. 	999-S at pp. 	8-9; 	Pajaro Valley at p. 	6; 	San Mateo County
Community College District 	(1979) 	PERB Decision No. 	94 at p. 	17;
California State Employees' 	Assn. 	v. 	Public Employment Relations
Bd. 	(1996) 	51 Cal.App.4th 923 at p. 	936 	[59 	Cal.Rptr.2d 488].)
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Therefore, 	the provisions 	of 	the parties' 	1992-95 	CBA and the
1993 	overtime 	side 	letter remained 	in effect 	during 	the 	time 	of
the alleged unlawful 	conduct 	in this 	case. 	(Antelope Valley-
Union High School District 	(1998) 	PERB Decision No. 	1287 at
pp. 	3-4.)
This 	case 	involves 	a dispute 	over the 	interpretation of 	the
parties' 	overtime policy side letter. 	If 	the side letter
requires 	CDC 	to meet 	staffing needs 	by 	offering voluntary
overtime 	assignments 	to 	staff 	nurses 	before utilizing permanent
intermittent 	or registry nurses, 	then CDC breached 	that written
agreement 	in violation of 	the Dills Act when it 	failed to do 	so.
If 	the 	side 	letter allows 	CDC 	to meet 	staffing needs by utilizing
permanent 	intermittent 	or 	registry 	nurses 	without 	first 	offering
voluntary overtime assignments 	to staff nurses, 	then CDC acted
lawfully when 	it 	took that 	action.
The 	California 	Civil 	Code provides 	guidance 	in the
interpretation of 	contractual 	language. 	Civil 	Code 	section 	1638
states, 	in part:
INTENTION TO BE ASCERTAINED 	FROM LANGUAGE.
The 	language of 	a 	contract 	is 	to govern 	its
interpretation, 	if 	the language 	is clear and
explicit, 	and does 	not 	involve an absurdity.
Additionally, 	Civil Code section 1641 states, 	in part:
EFFECT TO 	BE GIVEN TO 	EVERY 	PART OF 	CONTRACT.
The whole 	of a 	contract 	is 	to be 	taken
together, 	so as 	to give effect 	to every part,
if 	reasonably practicable, 	each clause
helping 	to 	interpret 	the 	other.
Following this guidance, 	the Board has held that, 	where
contractual 	language 	is 	clear and unambiguous, 	it 	is unnecessary
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to go beyond 	the plain language 	of 	the 	contract 	itself 	to
ascertain 	its meaning. 	(Marysville Joint 	Unified School 	District
(1983) 	PERB Decision No. 	314 at p. 	9 	(Marysville.) 	In
interpreting 	contract 	language, 	the Board examines bargaining
history 	to determine 	the 	intent 	of 	the parties 	in agreeing 	to a
contractual provision, 	only if 	the 	language of 	the 	contract 	is
found 	to be ambiguous. 	(Barstow Unified School 	District 	(1996)
PERB Decision No. 	1138 at pp. 	17-18 	(Barstow); 	Colusa Unified
School District 	(1983) 	PERB Decision No. 	296a at p. 	2.)
In this 	case, 	the Board concludes 	that 	the 	language 	of 	the
parties' 	overtime policy side 	letter 	is 	clear and unambiguous,
and 	finds 	it 	unnecessary 	to 	go beyond 	the plain meaning 	of 	that
language.
The 	side 	letter 	clearly 	establishes 	a 	policy governing 	the
assignment 	of 	staff 	nurses 	to work overtime, 	once overtime
assignments become available. 	Under that policy, 	the roster of
staff 	nurses volunteering 	to work overtime 	is 	utilized 	first.
When that 	roster 	is 	depleted, 	other means 	of 	filling the
assignment, 	including permanent 	intermittent and registry nurses,
must 	be utilized before 	staff 	nurses 	can be 	ordered 	to work
mandatory, 	involuntary overtime.
However, 	the 	side 	letter also 	clearly and explicitly states
that 	under 	the 	policy CDC 	is 	not precluded 	"from utilizing
permanent 	intermittents, 	registries as an alternative 	to
overtime." 	Under this 	language, 	CDC 	is 	expressly authorized to
meet 	staffing 	needs 	by using 	permanent 	intermittent 	or 	registry
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nurses 	as 	an alternative 	to 	the 	overtime assignment 	of 	staff
nurses. 	To 	interpret 	this 	language as 	enabling CDC to utilize
registry 	nurses 	only after 	exhausting 	the 	voluntary 	overtime
roster would 	essentially 	ignore 	this 	clear 	statement 	and 	render
it meaningless. 	In accordance with Civil 	Code 	section 1641, 	the
Board must 	avoid an 	interpretation 	of 	contract 	language 	which
leaves 	a provision without 	effect. 	(Riverside 	Community 	College
District 	(1992) 	PERB Order No. 	Ad-229 at pp. 	3-4; 	Barstow at
pp. 	17-18.) 	Therefore, 	the conduct by CDC which forms 	the basis
of 	the dispute 	in this 	case 	is 	expressly authorized by the
parties' 	overtime policy side letter, 	and there was no breach of
that 	written agreement.
It 	should also be noted 	that 	the 	fact 	that 	the 	employer has
not 	exercised contractual 	rights 	in the past, 	does not preclude
it 	from doing so 	in the 	future. 	(Marysville at p. 	10.)
Therefore, 	even if 	CDC in late 	1996 	changed 	its method of meeting
staffing 	needs 	by utilizing 	registry nurses 	prior 	to 	assigning
overtime 	to 	staff 	nurses 	listed 	on 	the voluntary 	overtime 	roster,
its 	action was 	authorized by the 	clear language 	of 	the parties'
overtime 	policy 	side 	letter and was 	not 	unlawful.
ORDER
The 	unfair practice 	charge 	and 	complaint 	in 	Case
No. 	LA-CE-399-S 	are hereby DISMISSED WITHOUT LEAVE TO AMEND.
Members 	Dyer and Amador 	joined 	in 	this 	Decision.
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