State of California (Employment Development Department) (PERB 1346S)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
e,
CALIFORNIA STATE 	EMPLOYEES
ASSOCIATION,
Charging 	Party,
v.
STATE OF CALIFORNIA 	(EMPLOYMENT
DEVELOPMENT DEPARTMENT),
Respondent.
)
)
)
) 	Case No. 	SA-CE-1207-S
PERB Decision No. 	1346-S
September 	2, 	1999
)
)
)
)
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Appearances: 	Marcia Mooney, 	Labor Relations Representative, 	for
California State Employees Association; 	State of 	California
(Department of Personnel Administration) 	by Wendy L. 	Ross, 	Labor
Relations Counsel, 	for State of California 	(Employment
Development Department).
Before Caffrey, 	Chairman; 	Dyer and Amador, 	Members.
DECISION
DYER, 	Member: 	This 	case comes before the Public Employment
Relations 	Board 	(Board) 	on the 	California State 	Employees
Association's 	(Association) 	appeal 	from a Board agent's 	dismissal
(attached) 	of 	its unfair practice charge. 	As amended, 	the charge
alleged 	that 	the 	State 	of 	California 	(Employment 	Development
Department) 	(Department) 	violated section 3519(a), 	(b) 	and 	(c) 	of
the Ralph C. 	Dills Act 	(Dills Act)1 when it unilaterally changed
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

the procedure 	for determining 	employee 	eligibility 	to 	receive 	a
bilingual 	pay differential.
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.
The 	Board has 	reviewed the 	entire 	record 	in this 	case,
including 	the 	original 	and amended unfair practice 	charge, 	the
warning and dismissal 	letters, 	the Association's 	appeal 	and the
Department's 	response 	thereto. 	The Board 	finds 	the warning and
dismissal 	letters 	to be 	free 	from prejudicial 	error and adopts
them as 	the 	decision of 	the Board itself.
ORDER
The unfair practice 	charge 	in Case No. 	SA-CE-1207-S 	is
hereby DISMISSED WITHOUT 	LEAVE 	TO AMEND.
Chairman 	Caffrey and Member Amador 	joined 	in 	this 	Decision.
22

STATE OF CALIFORNIA 	f 	GRAY DAVIS, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
1031 18th Street, Room 102
Sacramento, CA 95814-4174
(916) 322-3198
June 9, 	1999
Marcia Mooney, 	Labor Relations 	Representative
California 	State 	Employees 	Association
P.O. 	Box 1056
Galt, 	California 	95632
Re: 	California 	State Employees Association v. 	State 	of
California 	(Employment 	Development 	Department)- -
Unfair 	Practice 	Charge No. 	SA-CE-1207-S
Dismissal 	Letter
Dear Ms. 	Mooney:
The 	above-referenced 	unfair practice 	charge 	was 	filed with 	the
Public 	Employment 	Relations Board on January 29, 	1999. 	The
charge 	alleges 	that 	the 	State 	of 	California 	(Employment
Development Department) 	(EDD) 	violated the Ralph C. 	Dills Act,
Government Code section 3519 	(a), 	(b) 	and 	(c), 	when it reprised
against 	employees 	by 	decertifying 	them 	for bilingual 	differential
pay, 	when it 	denied employees 	union representation, 	and when EDD
unilaterally 	changed 	its 	policy 	regarding 	employee 	eligibility to
receive bilingual 	differential 	pay certification. 	On May 28,
1999, 	the 	allegations 	concerning reprisal 	against 	employees 	and
the 	denial 	of 	union 	representation were 	withdrawn without
prejudice by the Charging Party. 	Therefore, 	this 	letter
addresses 	only 	the 	allegation 	that 	EDD 	unilaterally 	changed 	its
policy 	concerning 	employee 	eligibility 	to 	receiving 	bilingual
pay.
I 	indicated to you, 	in my attached letter dated May 20, 	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 May
28, 	1999, 	the charge would be dismissed. 	On May 28, 	1999, 	I
received 	an 	amended unfair practice 	charge.
The 	amended 	charge 	addresses 	the 	allegation 	that 	EDD 	changed 	its
procedure 	for 	determining 	employee 	eligibility 	to 	receive
bilingual 	differential 	pay without 	providing 	California 	State
Employees Association 	(CSEA) 	with an opportunity to bargain. 	The
charge 	alleges 	that 	EDD's 	tactical 	plan 	for 	regionalization
required 	employees 	to voluntarily 	transfer 	into 	comparable 	job
classifications 	and\or transfer 	to 	a 	different 	location. 	As 	a
result, 	the 	Stockton EDD Office 	took steps 	to assess 	the number

SA-CE-1207-S
Dismissal 	Letter
Page 	2
of 	positions 	within 	the 	branch where 	bilingual 	skills 	were
needed. 	The 	Stockton Office 	determined 	its 	operational 	needs
required three bilingual 	employees. 	Consequently, 	On February 1,
1999, 	a number of 	employees 	at 	the 	EDD Stockton Office were
decertified 	to 	receive 	bilingual 	differential 	pay.
I 	indicated in my letter of May 20, 	1999, 	that 	the parties'
expired memorandum of 	understanding 	clearly 	states 	the 	terms 	and
standards 	for employee eligibility to 	receive bilingual 	pay, 	and
as written, 	the 	charge 	failed to demonstrate 	that 	EDD had not
followed 	the 	existing policy or procedure.
The 	amended charge 	continues 	to 	allege 	that 	the Respondent
unilaterally 	changed 	terms 	and 	conditions 	of 	employment 	without
meeting 	and 	conferring with 	CSEA over mandatory 	issues 	of
bargaining.
As 	noted 	in my previous 	letter, 	to 	establish a prima 	facie 	case
of 	an unlawful 	unilateral 	change, 	the 	charging party must 	show:
(1) 	that 	an employer breached or otherwise 	altered 	the parties'
written agreement; 	and 	(2) 	that 	those breaches 	amounted to a
change 	of 	policy which produced 	a 	generalized 	affect 	or
continuing 	impact 	upon the 	terms 	and conditions 	of 	employment.
(Grant 	Joint Union High School 	District 	(1982) 	PERB Decision No.
196.)
As 	in the original 	charge, 	the 	amended charge 	fails 	to
demonstrate 	the 	EDD 	failed 	to 	follow the 	standard 	specified 	in
the parties' 	agreement when it 	decertified employees 	from
receiving bilingual 	differential 	pay. 	Nor does 	the 	amended
charge provide 	factual 	support 	demonstrating that 	employees 	are
using 	their bilingual 	skills 	more 	than 	10% 	of 	the 	time without
receiving bilingual 	differential pay. 	The agreement 	states 	that
the 	employer may 	"ensure 	that 	positions 	clearly meet 	the
standards 	by 	centralizing 	the 	bilingual 	responsibility 	in as 	few
positions as possible." 	Thus, 	regardless of the 	length of time
the 	employees 	had been 	certified 	to 	receive 	bilingual
differential 	pay, 	decertifying employees 	to reduce 	the number of
employees 	receiving bilingual 	differential 	pay to 	as 	few
positions 	as 	operationally necessary 	is 	within the 	terms 	of 	the
parties' agreement.
A 	charging party has 	the 	obligation 	to 	identify the 	existing
policy and provide 	sufficient 	facts 	to 	support 	an 	allegation 	that
a 	change was made 	in the 	existing policy. 	This 	charge 	fails 	to
allege 	sufficient 	facts 	to demonstrate 	that 	the Respondent made 	a
change 	in policy within the 	scope 	of 	representation.
Accordingly, 	the 	allegation that 	EDD unilaterally changed its
practice 	and procedure 	for 	determining 	an 	employee's 	eligibility
to 	receive 	bilingual 	differential 	pay must 	be 	dismissed.
(

SA-CE-1207-S
Dismissal 	Letter
Page 3
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 Regs., 	tit. 	8,
sec. 	32635(a).) 	Any document 	filed with the Board must 	contain
the case name 	and number, 	and the original 	and five 	(5) 	copies of
all 	documents 	must 	be 	provided 	to 	the 	Board.
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 mailed by certified or Express 	United States mail, 	as 	shown
on the postal 	receipt 	or postmark, 	or delivered to 	a 	common
carrier promising overnight 	delivery, 	as 	shown on the 	carrier's
receipt, 	not 	later than the 	last day set 	for filing. 	(Cal. 	Code
Regs., tit. 	8, 	sec. 	32135(a); see also Cal. Code Regs., 	tit. 	8,
sec. 	32130.)
A document 	is 	also 	considered 	"filed" 	when 	received by 	facsimile
transmission before 	the 	close 	of 	business 	on the 	last 	day 	for
filing 	together 	with 	a 	Facsimile 	Transmission Cover 	Sheet 	which
meets the requirements of Cal. 	Code Regs., 	tit. 	8, 	sec. 	32135(d),
provided the 	filing party also places 	the 	original, 	together with
the required number of 	copies 	and proof of 	service, 	in the U.S.
mail. 	(Cal. 	Code. 	Regs., 	tit. 	8, 	secs. 	32135(b), 	(c) 	and 	(d) ;
see also Cal. 	Code Regs., 	tit. 	8, 	secs. 	32090 and 32130.)
The Board's 	address 	is:
Public 	Employment 	Relations 	Board
Attention: 	Appeals Assistant
1031 	18th Street
Sacramento, 	CA 	95814-4174
FAX: 	(916) 	327-7960
If you 	file 	a 	timely appeal 	of 	the 	refusal 	to 	issue 	a 	complaint,
any other party may 	file 	with 	the 	Board 	an original 	and 	five
copies 	of 	a 	statement 	in opposition within twenty 	(20) 	calendar
days 	following the date of 	service of 	the appeal. 	(Cal. 	Code
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 Regs., 	tit. 	8,
sec. 	32140 	for 	the 	required contents 	and a sample 	form.) 	The
document 	will 	be 	considered properly 	"served" 	when personally
(

SA-CE-1207-S
Dismissal 	Letter
Page 4
delivered or deposited in the 	first-class 	mail, 	postage paid and
properly 	addressed. 	A document 	filed by 	facsimile 	transmission
may be 	concurrently 	served via 	facsimile 	transmission 	on 	all
parties to the proceeding. 	(Cal. 	Code Regs., 	tit. 	8, 	sec.
32135(c) .)
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 Regs., 	tit. 	8, 	sec. 	32132.)
Final 	Date
If no appeal 	is 	filed within the 	specified time 	limits, 	the
dismissal 	will 	become 	final 	when the 	time 	limits 	have 	expired.
Sincerely,
ROBERT 	THOMPSON
Deputy 	General 	Counsel
Board Agent
Attachment
cc: 	Wendi L. 	Ross

STATE OF CALIFORNIA 	f 	GRAY DAVIS, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
1031 18th Street, Room 102
Sacramento, CA 95814-4174
(916) 322-3198
May 	2 0 , 	1999
Marcia Mooney, 	Labor Relations 	Representative
California 	State 	Employees 	Association
P.O. 	Box 1056
Galt, 	California 	95632
Re: 	California 	State Employees Association v. 	State 	of
California 	(Employment 	Development 	Department)
Unfair 	Practice 	Charge No. 	SA-CE-1207-S
WARNING 	LETTER
Dear Ms. 	Mooney:
The 	above-referenced unfair practice 	charge 	was 	filed with 	the
Public Employment 	Relations Board on January 29, 	1999. 	The
charge 	alleges 	that 	the 	State 	of 	California 	(Employment
Development Department) 	(EDD) 	violated the Ralph C. 	Dills Act,
Government Code section 3519(a), 	(b) 	and 	(c). 	After discussing
the allegations 	in the charge with you on May 14, 	1999, 	you
stated you were 	withdrawing 	all 	the 	alleged violations 	except 	the
allegation of 	an 	illegal 	unilateral 	change.
The 	charge 	states 	that on or about 	January 8, 	1999, 	EDD announced
that 	it 	had determined 	the 	Stockton Disability 	Insurance 	Field
Office 	only needed 	three 	bilingual 	employees. 	This 	determination
resulted 	in 	approximately 	18-20 	existing 	employees 	who 	had
previously been 	certified 	for bilingual 	differential 	pay 	to 	be
decertified. 	You contend that 	under Article 	11.4 	of 	the 	expired
Bargaining 	Unit 	1 	Memorandum of 	Understanding between 	CSEA and
the 	State 	of 	California 	and 	in 	keeping with 	established practice
by the parties, 	the 	decertified 	employees 	had originally been
hired 	into bilingual 	classifications, 	and thus, 	they should not
lose 	their bilingual 	differential 	pay 	certification.
Section 	11.4 	of 	the 	expired memorandum of 	understanding between
the parties 	states:
Bilingual 	Differential 	Pay applies 	to 	those 	positions
designated by 	the 	Department 	of 	Personnel
Administration 	as 	eligible 	to 	receive 	bilingual 	pay
according 	to 	the 	following 	standards:
a. 	Definition of 	Bilingual 	Position 	for Bilingual
Differential 	Pay:
(1) 	A bilingual 	position 	for 	salary
differential purposes 	requires 	the use 	of 	a
bilingual 	skill 	on a 	continuing basis
averaging 	10% of the time. 	Anyone using
their bilingual 	skills 	10% 	or more of 	the

time will 	be 	eligible 	.... 	In order to
receive bilingual 	differential 	pay, 	the
position/employee 	must 	be 	certified by 	the
using 	department 	and 	approved 	by 	the
Department 	of 	Personnel 	Administration.
(3) 	Position(s) 	must be 	in a 	setting where
there 	is 	a 	demonstrated 	client 	or
correspondence 	flow where 	bilingual 	skills
are 	clearly needed.
(4) 	Where organizationally feasible,
departments 	should 	ensure 	that 	positions
clearly meet 	the 	standards 	by 	centralizing
the 	bilingual 	responsibility 	in 	as 	few
positions 	as possible.
To demonstrate 	an 	illegal 	unilateral 	change, 	a charging party
must 	show: 	(1) 	that 	an employer breached or otherwise 	altered the
parties' 	written agreement; 	and 	(2) 	that 	those breaches amounted
to 	a 	change 	of 	policy which produced 	a 	generalized 	affect 	or
continuing 	impact 	upon the 	terms 	and 	conditions 	of 	employment.
(Grant 	Joint 	Union High School 	District 	(1982) 	PERB Decision No.
196.) 	In this 	case, 	the parties' 	agreement quoted above clearly
states 	the 	terms 	for 	receiving 	the 	bilingual 	pay differential.
While 	you 	have 	presented 	facts 	alleging 	that 	EDD 	has 	discontinued
bilingual 	differential pay of 	certain employees, 	there 	are no
facts 	demonstrating 	that 	the 	method or manner 	in which 	the
decertification 	was 	determined varied 	from 	the 	stated 	practice.
Nor 	are 	there 	any 	facts 	demonstrating 	that 	employees 	are 	using
their bilingual 	skills more 	than 10% 	of 	the 	time without
receiving bilingual 	differential 	pay. 	Accordingly, 	you have not
demonstrated a breach 	in 	the 	employer's 	past 	practice 	and 	this
charge must 	be 	dismissed.
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 May 28,1999, 	I 	shall
dismiss your charge. 	If you have any questions, 	please call me
at 	(916) 	322-3198.
Daya Hutchins
Board Agent