State of California (Department of Mental Health) (PERB 1328S)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA STATE 	EMPLOYEES
ASSOCIATION, 	LOCAL 1000, 	SEIU,
AFL-CIO, 	CLC,
Charging 	Party,
v.
STATE OF CALIFORNIA 	(DEPARTMENT OF
MENTAL HEALTH),
Respondent.
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) 	Case No. 	SF-CE-179-S
PERB Decision No. 	1328-S
April 	26, 	1999
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Appearance: 	California 	State 	Employees Association by Terrence
Ryan, 	Labor Relations Representative, 	for California State
Employees Association, 	Local 1000, 	SEIU, AFL-CIO, 	CLC.
Before Caffrey, 	Chairman; 	Dyer and Amador, 	Members.
DECISION
CAFFREY, 	Chairman: 	This 	case is before the Public
Employment 	Relations 	Board 	(Board) 	on appeal by the 	California
State Employees Association, 	Local 1000, 	SEIU, 	AFL-CIO, 	CLC
(CSEA) 	of a Board agent's dismissal 	(attached) 	of 	its unfair
practice 	charge. 	In the 	charge, 	CSEA alleged that 	the State 	of
California 	(Department 	of Mental 	Health) 	failed and refused to
provide 	information to CSEA in violation of 	section 3519(b) 	and
(c) 	of the Ralph C. 	Dills Act 	(Dills Act).1
1The Dills 	Act 	is 	codified at 	Government 	Code 	section 	3512
et seq. 	Section 3519 	states, 	in pertinent part:
It 	shall be unlawful 	for the 	state to do any
of 	the 	following:
(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 unfair practice 	charge, 	the Board agent's 	warning
and dismissal 	letters and CSEA's 	appeal. 	The Board 	finds 	the
warning and dismissal 	letters 	to be 	free 	of 	prejudicial 	error and
adopts 	them as 	the 	decision of 	the Board 	itself.
ORDER
The unfair practice 	charge 	in Case No. 	SF-CE-179-S 	is
DISMISSED WITHOUT LEAVE 	TO AMEND.
Members 	Dyer and Amador 	joined 	in 	this 	Decision.
22

STATE OF CALIFORNIA 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
177 Post Street, 9th Floor
San Francisco, CA 94108-4737
(415)439-6940
February 5, 	1999
Terrence 	Ryan
Labor 	Relations 	Representative
California 	State 	Employees 	Association
2020 	Challenger Drive, 	Suite 	102
Alameda, 	California 	94501-1017
Re: 	DISMISSAL 	OF UNFAIR PRACTICE 	CHARGE/REFUSAL 	TO 	ISSUE
COMPLAINT
California State Employees Association, 	Local 	1000, 	SEIU,
AFL-CIO, 	CLC v. 	State of 	California 	(Department 	of Mental
Health)
Unfair 	Practice 	Charge No. 	SF-CE-179-S
Dear Mr. 	Ryan:
The 	above-referenced unfair practice 	charge, 	filed on December 	8,
1997, 	alleges 	that 	the 	State of 	California 	(Department 	of Mental
Health) 	(State) 	failed and refused to provide 	information to the
California State Employees Association, 	Local 100, 	SEIU, 	AFL-CIO,
CLC 	(Association). 	This 	conduct 	is 	alleged to violate Government
Code 	section 3519(b) 	and 	(c) 	of 	the Ralph C. 	Dills Act 	(Dills
Act) .
I 	indicated to you, 	in my attached letter dated January 22, 	1999,
that 	the 	above-referenced 	charge 	did not 	state 	a prima 	facie
case. 	You were 	advised that, 	if 	there were 	any factual
inaccuracies 	or 	additional 	facts 	which would 	correct 	the
deficiencies 	explained 	in that 	letter, 	you 	should amend the
charge: 	You were 	further advised that, 	unless 	you amended the
charge 	to 	state 	a prima 	facie 	case or withdrew it 	prior to
January 29,' 1999, 	the charge would be dismissed.
I 	have 	not 	received either an amended charge 	or 	a 	request 	for
withdrawal. 	Therefore, 	I 	am dismissing the 	charge based on the
facts 	and reasons 	contained 	in my January 22, 	1999 	letter.
Right 	to Appeal
Pursuant 	to 	Public 	Employment 	Relations 	Board regulations, 	you
may obtain 	a 	review of 	this 	dismissal 	of 	the 	charge 	by 	filing
an appeal 	to 	the 	Board 	itself 	within twenty 	(20) 	calendar days
after service of this dismissal. 	(Cal. 	Code of Regs., 	tit. 	8,
sec. 	32635(a).) 	To be timely filed, 	the original 	and five copies

Dismissal 	Letter
SF-CE-179-S
February 5, 	1999
Page 2
of 	such appeal 	must 	be 	actually 	received by 	the 	Board 	itself
before the 	close of business 	(5 p.m.) 	or sent by telegraph,
certified 	or 	Express 	United 	States 	mail 	postmarked 	no 	later
than the last date set for filing. 	(Cal. 	Code of Regs., 	tit. 	8,
sec. 	32135.) 	Code of Civil 	Procedure 	section 1013 	shall 	apply.
The Board's 	address 	is:
Public 	Employment 	Relations 	Board
1031 	18th Street
Sacramento, 	CA 95814
If you 	file 	a 	timely appeal 	of 	the 	refusal 	to 	issue 	a 	complaint,
any other 	party may 	file 	with 	the 	Board 	an 	original 	and 	five
copies of 	a statement 	in opposition within twenty 	(2 0) 	calendar
days 	following the date of 	service of 	the appeal. 	(Cal. 	Code of
Regs., tit. 8, sec. 32635 (b) .)
Service
All 	documents 	authorized to be 	filed herein must 	also be 	"served"
upon all parties 	to the proceeding, 	and a 	"proof of 	service"
must 	accompany 	each 	copy of 	a 	document 	served upon 	a 	party or
filed with the Board itself. 	(See Cal. 	Code of Regs., 	tit. 	8,
sec. 	32140 	for the 	required contents 	and a 	sample 	form.) 	The
document 	will 	be 	considered properly 	"served" 	when personally
delivered or 	deposited in the 	first-class mail, 	postage paid and
properly 	addressed.
Extension of 	Time
A request 	for 	an extension of 	time, 	in which to 	file 	a 	document
with 	the 	Board 	itself, 	must 	be 	in writing 	and 	filed with the
Board at 	the 	previously noted 	address. 	A request 	for 	an
extension must 	be 	filed at 	least 	three 	(3) 	calendar days before
the 	expiration of 	the 	time 	required 	for 	filing 	the 	document.
The request must 	indicate good cause 	for and, 	if 	known, 	the
position of 	each other party regarding 	the 	extension, 	and 	shall
be 	accompanied by proof 	of 	service 	of 	the 	request 	upon each
party. 	(Cal. 	Code of Regs., 	tit. 	8, 	sec. 	32132.)
Final 	Date
If no appeal 	is 	filed within the 	specified time 	limits, 	the
r

Dismissal 	Letter
SF-CE-179-S
February 5, 	1999
Page 3
dismissal 	will 	become 	final 	when the 	time 	limits 	have 	expired.
Sincerely,
ROBERT 	THOMPSON
Deputy General 	Counsel
By DONN GINOZA
Regional 	Attorney
Attachment
cc: 	Robert J. 	Allen

STATE OF CALIFORNIA 	. 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
177 Post Street, 9th Floor
San Francisco, CA 94108-4737
(415)439-6940
January 22, 	1999
Terrence 	Ryan
Labor 	Relations 	Representative
California 	State 	Employees 	Association
2020 	Challenger Drive, 	Suite 	102
Alameda, 	California 	94501-1017
Re: 	WARNING LETTER
California State Employees Association, 	Local 	1000, 	SEIU,
AFL-CIO, 	CLC v. 	State of 	California 	(Department 	of Mental
Health)
Unfair 	Practice 	Charge No. 	SF-CE-179-S
Dear Mr. 	Ryan:
The 	above-referenced unfair practice 	charge, 	filed on December 	8,
1997, 	alleges 	that 	the 	State of 	California 	(Department 	of Mental
Health) 	(State) 	failed and refused to provide 	information to 	the
California State Employees Association, 	Local 	100, 	SEIU, 	AFL-CIO,
CLC 	(Association). 	This 	conduct 	is 	alleged to violate Government
Code 	section 3519(b) 	and 	(c) 	of 	the Ralph C. 	Dills Act 	(Dills
Act) .
Investigation of 	the 	charge 	revealed the 	following. 	The
Association 	is 	an 	exclusive 	representative 	of 	an 	appropriate
bargaining unit 	composed of 	State 	employees.
The Association 	represents 	employees 	who work at 	the 	California
Medical 	Facility 	(CMF), 	located in Vacaville. 	The Association
alleges 	that 	beginning 	in or around January 1997, 	RNs 	at 	the
facility were 	denied overtime 	on 	each occasion 	that 	they were
required to' stay at 	their posts 	during lunch periods 	due 	to the
lack of 	other 	RN coverage 	during 	that 	time.
During the 	initial 	discussions 	of 	the dispute, 	the 	State 	took the
position that 	the 	RNs 	were 	permitted by 	licensing 	laws 	to 	leave
their posts 	during 	the 	lunch period 	so 	long 	as 	they notified
their supervisor. 	However, 	it 	did so apparently after a 	short
time 	earlier 	saying 	that 	RNs 	wer	. . . 	e 	required by the 	same
regulations 	not 	to 	leave 	their posts without 	substitute 	coverage.
Also during these discussions, 	on or about 	February 11, 	1997, 	the
State 	responded by 	requesting 	that 	the Association 	identify 	(1)
the 	lunch breaks 	that 	RNs worked without payment, 	(2) 	days on
which substitute 	coverage was 	lacking, 	and 	(3) 	the 	total 	number
of 	uncompensated hours 	for 	each 	employee 	affected.
On or about April 24, 	1997, 	Susan Matranga, 	a registered nurse
(RN) 	at CMF as well 	as 	an Association job steward, 	filed a
(
==-----_-_--

Warning 	Letter
SF-CE-179-S
January 22, 	1999
Page 2
grievance 	on 	behalf 	of 	herself 	and other RNs 	at 	the 	facility.
According 	to 	the Association, 	the 	State 	did not 	provide
appropriate 	responses 	at 	Levels 	1 	and 2 	of 	the grievance
procedure.
Terrence 	Ryan, 	Association Labor Relations 	Representative,
carried the 	grievance 	forward. 	He wrote 	to 	Stephen W. 	Mayberg,
Director of 	Mental 	Health on May 	15, 	1997 	requesting 	that 	the
grievance be 	elevated to the 	third step. 	In the 	letter, 	Ryan
notes 	that 	the 	State, 	despite 	asserting authority under 	licensing
provisions, 	failed to 	submit 	them to the Association. 	However,
the 	charge 	does 	not 	allege 	that 	the Association made 	any 	specific
request 	for 	that 	information.
After an unsatisfactory response 	at 	Level 	3, 	Ryan elevated the
grievance 	to the 	fourth step. 	In his June 	13, 	1997 	letter
elevating 	the 	grievance, 	Ryan 	complains 	that 	the Department 	of
Mental 	Health 	is 	"not 	giving us 	records 	of when nurses 	actually
worked but 	did 	not 	claim 	[overtime 	compensation] 	and when R.N.s
did not 	cover wards." 	Again, 	the 	charge 	fails 	to allege 	if 	or
when a 	specific 	request 	for 	this 	information was 	lodged.
Based on the 	facts 	stated above, 	the 	charge 	as presently written
fails 	to 	state 	a prima 	facie violation of 	the Dills Act 	for the
reasons 	that 	follow.
The 	written 	factual 	statement 	accompanying 	the 	charge 	indicates
that 	the primary focus 	of 	the 	charge 	concerns 	the 	allegations
prior to 	the 	filing of 	the grievance, 	in January and February
1997. 	During 	that 	time, 	the 	State demanded that 	the Association
provide 	factual 	information underlying 	the 	claim 	for 	overtime
payments. 	It 	also 	reversed its position on what 	the 	licensing
requirements 	required. 	The Association alleges 	that 	these
actions 	constitute 	bad 	faith.
This 	alleged 	conduct, 	alleged 	to 	have 	occurred 	in January and
February 	1997, 	appears 	to be untimely filed because 	the 	charge
was not 	filed until 	December 	8, 	1997. 	Government 	Code 	section
3514.5(a) (1) 	of the Dills Act 	states that 	the Public Employment
Relations 	Board 	(PERB) 	shall 	not 	"issue 	a 	complaint 	in respect 	of
any 	charge, based on 	an 	alleged unfair practice 	occurring more
than six months 	prior to 	the 	filing of 	the 	charge." 	The 	charge
to be 	timely must 	involve 	events 	occurring on or 	after 	June 	8,
1997. 	PERB has 	held 	that 	the 	six month period commences 	to 	run
when 	the 	charging party knew or 	should have 	known 	of 	the 	conduct
giving rise 	to 	the 	alleged unfair practice. 	(Regents 	of 	the
University of California 	(1983) 	PERB Dec. 	No. 	359-H.)

Warning 	Letter
SF-CE-179-S
January 22, 	1999
Page 3
With respect 	to 	the merits 	of 	the 	allegations, 	the Association
appears 	to be 	alleging a 	refusal 	to bargain 	in good 	faith. 	While
these 	early 	discussions 	may be 	considered pre-grievance
discussions 	or negotiations, 	the 	allegations 	fail 	to 	demonstrate
that 	the 	State 	did anything 	improper 	so as 	to 	constitute 	an
unfair practice. 	Even assuming 	a 	duty to bargain 	in good 	faith
applies 	in this 	setting, 	the 	facts 	are 	insufficient 	to
demonstrate 	a violation. 	(See 	Stockton Unified School 	District
(1980) 	PERB Decision No. 	134 	["totality of 	the 	circumstances"
test 	in bad 	faith bargaining 	cases].)
The Association 	also 	appears 	to 	contend 	that 	the 	State 	refused 	to
provide 	staffing 	and pay records 	for RNs, 	thus 	unlawfully
refusing to provide 	information. 	(Id. 	[duty to provide
information].) 	However, 	the Association fails 	to allege that 	it
made 	any 	specific 	demands 	or 	requests 	for 	information 	in the
possession of 	the 	State. 	The 	fact 	that 	the 	State 	demanded that
the 	Association produce 	factual 	information 	substantiating 	its
claims 	in the 	context 	of 	a potential 	grievance 	is 	not 	improper.
The 	State 	was 	entitled to 	request 	the 	evidence 	underlying 	the
potential 	grievance 	in order 	to 	determine 	its potential 	merit 	for
settlement 	purposes.
For these reasons 	the charge, 	as presently written, 	does not
state 	a prima 	facie 	case. 	If 	there 	are 	any 	factual 	inaccuracies
in 	this 	letter 	or 	additional 	facts 	which would correct 	the
deficiencies 	explained above, 	please amend the 	charge. 	The
amended 	charge 	should be 	prepared 	on 	a 	standard 	PERB 	unfair
practice 	charge 	form, 	clearly 	labeled First 	Amended Charge,
contain all 	the 	facts 	and allegations you wish to make, 	and
be 	signed under penalty of 	perjury by the 	charging party. 	The
amended charge 	must 	have 	the 	case 	number written on 	the 	top 	right
hand 	corner of 	the 	charge 	form. 	The 	amended 	charge 	must 	be
served 	on 	the 	respondent's 	representative 	and 	the 	original 	proof
of 	service must 	be 	filed with PERB. 	If 	I 	do not 	receive an
amended charge 	or withdrawal 	from you before 	January 29, 	1999, 	I
shall dismiss your charge. 	If you have any questions, 	please
call me at 	(415) 	439-6940.
Sincerely,
DONN 	GINOZA
Regional 	Attorney