State of California (Franchise Tax Board) (Association of California State Attorneys and Hearing Officers) (PERB 0229S)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
ASSOCIATION OF CALIFORNIA STATE
ATTORNEYS AND HEARING OFFICERS,
Charging Party,
v .
STATE OF CALIFORNIA
(FRANCHISE TAX BOARD) ,
Respondent.
Case No. S-CE-22-S
PERB Decision No. 229-S
July 29, 1982
Appearances: 	Paul J. Petrozzi and Edward L. Faunce, Attorneys,
for the Association of California State Attorneys and Hearing
Officers; Barbara T. Stuart, Attorney (Department of Personnel
Administration) for the State of California, Franchise Tax
Board.
Before Gluck, Chairperson; Jensen and Jaeger, Members.
DECISION
This case is before the Public Employment Relations Board
(hereafter PERB or Board) on exceptions filed by the
Association of California State Attorneys and Hearing Officers
(hereafter ACSA) , and a response to those exceptions filed by
the State of California (Franchise Tax Board) (hereafter the
State or FTB) . The proposed decision of the hearing officer is
incorporated by reference herein. ACSA alleged initially that
the FTB unilaterally altered its parking policy in violation of
subsection 3519 (b) of the State Employer-Employee Relations Act
(hereafter SEERA) , and amended its charge at the hearing to
include the allegation that FTB discriminatorily granted
STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC EMPLOYMENT 	RELATIONS 	BOARD
ASSOCIATION 	OF 	CALIFORNIA 	STATE
ATTORNEYS 	AND 	HEARING 	OFFICERS,
Charging 	Party,
v.
STATE 	OF CALIFORNIA
(FRANCHISE 	TAX 	BOARD},
Respondent.
}
}
}
}
}
}
}
}
}
}
}
____________________ }
Case 	No. 	S-CE-22-S
PERB 	Decision 	No. 	229-S
July 	29, 	1982
Appearances: 	Paul 	J. 	Petrozzi 	and 	Edward 	L. 	Faunce, 	Attorneys,
for 	the 	Association 	of 	California 	State 	Attorneys 	and 	Hearing
Officers; 	Barbara 	T. 	Stuart, 	Attorney 	(Department 	of 	Personnel
Administration} 	for 	the 	State 	of 	California, 	Franchise 	Tax
Board.
Before 	Gluck, 	Chairperson; 	Jensen 	and 	Jaeger, 	Members.
DECISION
This 	case 	is 	before 	the 	Public 	Employment 	Relations 	Board
(hereafter 	PERB 	or 	Board} 	on 	exceptions 	filed 	by 	the
Association 	of 	California 	State 	Attorneys 	and 	Hearing 	Officers
(hereafter 	ACSA}, 	and 	a 	response 	to 	those 	exceptions 	filed 	by
the 	State 	of 	California 	(Franchise 	Tax 	Board} 	(hereafter 	the
State 	or 	FTB}. 	The 	proposed 	decision 	of 	the 	hearing 	officer 	is
incorporated 	by 	reference 	herein. 	ACSA 	alleged 	initially 	that
the 	FTB 	unilaterally 	altered 	its 	parking 	policy 	in 	violation 	of
subsection 	3519(b} 	of 	the 	State 	Employer-Employee 	Relations 	Act
(hereafter 	SEERA}, 	and 	amended 	its 	charge 	at 	the 	hearing 	to
include 	the 	allegation 	that 	FTB 	discriminatorily 	granted

preferential parking privileges exclusively to incumbents of
job classifications exempt from SEERA coverage in violation of
subsection 3519 (a) . ! The hearing officer dismissed the
allegations in their entirety. For the reasons set forth
infra, we affirm the result arrived at by the hearing officer.
FACTS
The hearing officer's findings of fact are free of
prejudicial error and were not specifically excepted to. We
adopt them as the findings of the Board as summarized and
modified infra.
In 1971, the FTB moved its offices from downtown Sacramento
to the Aerojet facility approximately 20 miles away. At
Aerojet, free parking was and is available for all employees.
There are certain spaces immediately adjacent to the building
housing the FTB offices, the perimeter spaces, which are
ISEERA is codified at Government Code sections 3512 et
seq. 	All statutory references are to the Government Code,
unless specified otherwise. 	Subsections 3519 (a) and (b)
provide as follows:
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.
N
preferential 	parking 	privileges 	exclusively 	to 	incumbents 	of
job 	classifications 	exempt 	from 	SEERA coverage 	in 	violation 	of
subsection 	3519(a).l 	The 	hearing 	officer 	dismissed 	the
allegations 	in 	their 	entirety. 	For 	the 	reasons 	set 	forth
infra, 	we 	affirm 	the 	result 	arrived 	at 	by 	the 	hearing 	officer.
FACTS
The 	hearing 	officer's 	findings 	of 	fact 	are 	free 	of
prejudicial 	error 	and 	were 	not 	specifically 	excepted 	to. 	We
adopt 	them 	as 	the 	findings 	of 	the 	Board 	as 	summarized 	and
modified 	infra.
In 	1971, 	the 	FTB moved 	its 	offices 	from 	downtown 	Sacramento
to 	the 	Aerojet 	facility 	approximately 	20 	miles 	away. 	At
Aerojet, 	free 	parking 	was 	and 	is 	available 	for 	all 	employees.
There 	are 	certain 	spaces 	immediately 	adjacent 	to 	the 	building
housing 	the 	FTB 	offices, 	the 	perimeter 	spaces, 	which 	are
lsEERA 	is 	codified 	at 	Government 	Code 	sections 	3512 	et
seq. 	All 	statutory 	references 	are 	to 	the 	Government 	Code,
unless 	specified 	otherwise. 	Subsections 	3519(a) 	and 	(b)
provide 	as 	follows:
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.
2

assigned on a preferential basis. Other than these assigned
spaces, parking is available on a "first come, first served"
basis in the "west lot" and the "south lot." Until spring of
1980, when the allegedly violative parking policy changes were
made, perimeter spaces were assigned to visitors, handicapped
persons, state cars, and employees at the administrator I
salary level and above. Under this practice, attorneys
qualified for perimeter spaces. 	The practice described above
was not written. In October of 1978, Pan Gee became manager of
business services at FTB. 	The absence of a written parking
policy and the increase in numbers of handicapped persons
motivated Gee and FTB management to develop a formal parking
plan.
The attorneys and other members of FTB staff began to hear
rumors regarding a change in parking policy in mid-to-late
1979. Attorneys discussed the rumors among themselves during
this time period, particularly because it appeared that they
might lose their perimeter parking privileges under the new
plan. On about October 22, 1979, members of the legal staff
saw a memorandum circulated over Pan Gee's signature which
indicated that the parking policy was to be changed and that
attorneys would lose their spaces. The attorneys sent a memo
of protest to Legal Division Chief Bruce Walker, asking him to
keep their concerns in mind when discussing the proposed
changes in parking policy. Walker responded to staff
W
assigned 	on 	a 	preferential 	basis. 	Other 	than 	these 	assigned
spaces, 	parking 	is 	available 	on 	a 	"first 	come, 	first 	served"
basis 	in 	the 	"west 	lot" 	and 	the 	"south 	lot." 	Until 	spring 	of
1980, 	when 	the 	allegedly 	violative 	parking 	policy 	changes 	were
made, 	perimeter 	spaces 	were 	assigned 	to 	visitors, 	handicapped
persons, 	state 	cars, 	and 	employees 	at 	the 	administrator 	I
salary 	level 	and 	above. 	Under 	this 	practice, 	attorneys
qualified 	for 	perimeter 	spaces. 	The 	practice 	described 	above
was 	not 	written. 	In 	October 	of 	1978, 	Pan Gee 	became 	manager 	of
business 	services 	at 	FTB. 	The 	absence 	of 	a 	written 	parking
policy 	and 	the 	increase 	in 	numbers 	of 	handicapped 	persons
motivated 	Gee 	and 	FTB management 	to 	develop 	a 	formal 	parking
plan.
The 	attorneys 	and 	other 	members 	of 	FTB 	staff 	began 	to 	hear
rumors 	regarding 	a 	change 	in 	parking 	policy 	in 	mid-to-late
1979. 	Attorneys 	discussed 	the 	rumors 	among 	themselves 	during
this 	time 	period, 	particularly 	because 	it 	appeared 	that 	they
might 	lose 	their 	perimeter 	parking 	privileges 	under 	the 	new
plan. 	On 	about 	October 	22, 	1979, 	members 	of 	the 	legal 	staff
saw 	a 	memorandum circulated 	over 	Pan 	Gee's 	signature 	which
indicated 	that 	the 	parking 	policy 	was 	to 	be 	changed 	and 	that
attorneys 	would 	lose 	their 	spaces. 	The 	attorneys 	sent 	a 	memo
of 	protest 	to 	Legal 	Division 	Chief 	Bruce 	Walker, 	asking 	him 	to
keep 	their 	concerns 	in mind 	when 	discussing 	the 	proposed
changes 	in 	parking 	policy. 	Walker 	responded 	to 	staff
3

attorneys, by memo, and indicated his position. The attorneys,
in turn, responded to Walker on December 4, 1979, indicating
that they had seen a copy of the complete new parking plan
(referenced herein as Policy File 5030) and suggesting that he
request perimeter parking for them based upon their need to
park close to the facility because of their alleged frequent
travel and irregular working hours.
At all pertinent times herein, the attorneys at FTB were
represented by ACSA on a nonexclusive basis. Paul Petrozzi
acted as the unit representative of ACSA for FTB's attorneys.
He testified that the attorneys resolved to wait until a
parking policy was adopted and to then request a meet and
confer session regarding it. Petrozzi stated that he and the
other attorneys were unclear as to what course to follow under
SEERA.
Sometime during late February or early March of 1980,
Walker advised the attorneys that the new parking policy was
set for adoption, and that it would cause certain of the
attorneys to lose their perimeter parking. Soon thereafter,
Petrozzi went to the next regularly scheduled ACSA meeting and
requested funds to hire an attorney to file an unfair practice
charge and/or take whatever other steps were deemed
appropriate. On March 14, 1980, Frank Evans, ACSA president,
sent a letter to FTB Acting Executive Officer William G. Mackey
requesting a meeting so that FTB could ". . . explain the
attorneys, 	by 	memo, 	and 	indicated 	his 	position. 	The 	attorneys,
in 	turn, 	responded 	to Walker 	on 	December 	4, 	1979, 	indicating
that 	they 	had 	seen 	a 	copy 	of 	the 	complete 	new 	parking 	plan
(referenced 	herein 	as 	Policy 	File 	5030) 	and 	suggesting 	that 	he
request 	perimeter 	parking 	for 	them 	based 	upon 	their 	need 	to
park 	close 	to 	the 	facility 	because 	of 	their 	alleged 	frequent
travel 	and 	irregular 	working 	hours.
At 	all 	pertinent 	times 	herein, 	the 	attorneys 	at 	FTB were
represented 	by 	ACSA on 	a 	nonexclusive 	basis. 	Paul 	Petrozzi
acted 	as 	the 	unit 	representative 	of 	ACSA 	for 	FTB's 	attorneys.
He 	testified 	that 	the 	attorneys 	resolved 	to 	wait 	until 	a
parking 	policy 	was 	adopted 	and 	to 	then 	request 	a 	meet 	and
confer 	session 	regarding 	it. 	Petrozzi 	stated 	that 	he 	and 	the
other 	attorneys 	were 	unclear 	as 	to 	what 	course 	to 	follow 	under
SEERA.
Sometime 	during 	late 	February 	or 	early March 	of 	1980,
Walker 	advised 	the 	attorneys 	that 	the 	new 	parking 	policy 	was
set 	for 	adoption, 	and 	that 	it 	would 	cause 	certain 	of 	the
attorneys 	to 	lose 	their 	perimeter 	parking. 	Soon 	thereafter,
Petrozzi 	went 	to 	the 	next 	regularly 	scheduled 	ACSA meeting 	and
requested 	funds 	to 	hire 	an 	attorney 	to 	file 	an 	unfair 	practice
charge 	and/or 	take 	whatever 	other 	steps 	were 	deemed
appropriate. 	On March 	14, 	1980, 	Frank 	Evans, 	ACSA 	president,
sent 	a 	letter 	to 	FTB Acting 	Executive 	Officer 	William G. 	Mackey
requesting 	a 	meeting 	so 	that 	FTB could" ••• 	explain 	the
4

reasons for the decision . . ." to deprive attorneys of their
parking spaces.
On March 27, 1980, a meeting was held regarding the parking
policy. Present for ACSA was Paul Petrozzi; present for
management were Linda Boerlin, FTB assistant labor relations
officer, and R. L. Smith, FTB chief of program services
division. 	Boerlin did the talking on behalf of management, and
Smith acted as an observer. Boerlin had authority to commit
FTB management to alter the parking policy pursuant to that
meeting, although the record is unclear as to whether she told
Petrozzi of that authority.
reasons 	for 	the 	decision 	•• 	"to deprive 	attorneys 	of 	their
parking 	spaces.
On March 	27, 	1980, 	a 	meeting 	was 	held 	regarding 	the 	parking
policy. 	Present 	for 	ACSA was 	Paul 	Petrozzi; 	present 	for
management 	were 	Linda 	Boerlin, 	FTB 	assistant 	labor 	relations
officer, 	and 	R. 	L. 	Smith, 	FTB 	chief 	of 	program 	services
division. 	Boerlin 	did 	the 	talking 	on 	behalf 	of 	management, 	and
Smith 	acted 	as 	an 	observer. 	Boerlin 	had 	authority 	to 	commit
FTB 	management 	to 	alter 	the 	parking 	policy 	pursuant 	to 	that
meeting, 	although 	the 	record 	is 	unclear 	as 	to 	whether 	she 	told
Petrozzi 	of 	that 	authority.
Petrozzi began the meeting by presenting ACSA's arguments
in favor of attorneys retaining their parking prvileges.
Boerlin responded to the concerns raised by Petrozzi. 	A
give-and-take discussion ensued. 	The meeting lasted
approximately 45 minutes. Boerlin took notes regarding the
meeting. At its conclusion, she informed Petrozzi that she
would prepare a memo which would summarize the meeting, and
give management's decision on the issues raised by Petrozzi.
That memo was transmitted to Petrozzi on April 8, 1980.
Management's decision as a result of the meeting was not to
alter Policy File 5030, dated March 20, 1980.
The new policy resulted in assignment of perimeter spaces
in the following categories: visitors/vendors; handicapped;
disabled; state cars; and certain job classifications including
Petrozzi 	began 	the 	meeting 	by 	presenting 	ACSA's 	arguments
in 	favor 	of 	attorneys 	retaining 	their 	parking 	prvileges.
Boerlin 	responded 	to 	the 	concerns 	raised 	by 	Petrozzi. 	A
give-and-take 	discussion 	ensued. 	The 	meeting 	lasted
approximately 	45 	minutes. 	Boerlin 	took 	notes 	regarding 	the
meeting. 	At 	its 	conclusion, 	she 	informed 	Petrozzi 	that 	she
would 	prepare 	a 	memo 	which 	would 	summarize 	the 	meeting, 	and
give 	management's 	decision 	on 	the 	issues 	raised 	by 	Petrozzi.
That 	memo 	was 	transmitted 	to 	Petrozzi 	on 	April 	8, 	1980.
Management's 	decision 	as 	a 	result 	of 	the 	meeting 	was 	not 	to
alter 	Policy 	File 	5030, 	dated 	March 	20, 	1980.
The 	new 	policy 	resulted 	in 	assignment 	of 	perimeter 	spaces
in 	the 	following 	categories: 	visitors/vendors; 	handicapped;
disabled; 	state 	cars; 	and 	certain 	job classifications 	including
5

managerial, confidential, and high-level supervisory
categories. Spaces were assigned by classification or job
description, rather than individuals. It was concluded, as a
result of many meetings and discussions during the period from
October of 1978 through May of 1980 that there was no
overriding need on the part of any employment classification
for a perimeter space. All but 88 of the 177 perimeter spaces
went to visitors/vendors, handicapped and disabled persons, and
state cars, in keeping with priorities set forth in the State's
comprehensive agency parking plan. The remaining 88 spaces
were distributed, as noted above, to managerial, confidential,
and high-level supervisory personnel. Given the limited and
nonexpanding number of such spaces, it was determined that they
should be distributed to classifications which were not
expanding in number.
On April 17, 1980, seventeen attorneys (those not at the
managerial level) were informed that they should vacate their
perimeter spaces as of May 1, 1980. Also displaced were four
auditors, three data processors, one collections employee,
three administrator I's, and four clerical supervisors.
The difference between the perimeter parking and readily
available free parking is extremely slight. An affected
attorney who parked in the most remote space in the south or
west lot would be required to walk, at most, an additional 459
feet from his or her car to the building entrance.
managerial, 	confidential, 	and 	high-level 	supervisory
categories. 	Spaces 	were 	assigned 	by 	classification 	or 	job
description, 	rather 	than 	individuals. 	It 	was 	concluded, 	as 	a
result 	of 	many 	meetings 	and 	discussions 	during 	the 	period 	from
October 	of 	1978 	through May 	of 	1980 	that 	there 	was 	no
overriding 	need 	on 	the 	part 	of 	any 	employment 	classification
for 	a 	perimeter 	space. 	All 	but 	88 	of 	the 	177 	perimeter 	spaces
went 	to 	visitors/vendors, 	handicapped 	and 	disabled 	persons, 	and
state 	cars, 	in 	keeping 	with 	priorities 	set 	forth 	in 	the 	State's
comprehensive 	agency 	parking 	plan. 	The 	remaining 	88 	spaces
were 	distributed, 	as 	noted 	above, 	to 	managerial, 	confidential,
and 	high-level 	supervisory 	personnel. 	Given 	the 	limited 	and
nonexpanding 	number 	of 	such 	spaces, 	it 	was 	determined 	that 	they
should 	be 	distributed 	to 	classifications 	which 	were 	not
expa~ding 	in 	number.
On April 	17, 	1980, 	seventeen 	attorneys 	(those 	not 	at 	the
managerial 	level) 	were 	informed 	that 	they 	should 	vacate 	their
perimeter 	spaces 	as 	of 	May 	1, 	1980. 	Also 	displaced 	were 	four
auditors, 	three 	data 	processors, 	one 	collections 	employee,
three 	administrator 	I's, 	and 	four 	clerical 	supervisors.
The 	difference 	between 	the 	perimeter 	parking 	and 	readily
available 	free 	parking 	is 	extremely 	slight. 	An 	affected
attorney 	who 	parked 	in 	the 	most 	remote 	space 	in 	the 	south 	or
west 	lot 	would 	be 	required 	to 	walk, 	at 	most, 	an 	additional 	459
feet 	from 	his 	or 	her 	car 	to 	the 	building 	entrance.
6

DISCUSSION
I. 	The Alleged Failure to Meet and Discuss
In Professional Engineers in California Government (PECG)
(3/19/80) PERB Decision No. 118-S, the Board held that, prior
to selection of an exclusive representative, the state employer
owes to nonexclusive representatives an obligation to meet and
discuss subjects ". 	. basic to the employment
relationship 	" prior to making changes regarding them.
The Board made it clear that it did not purport by that
decision to fully define the range of matters which are so
basic to the employment relationship that they must be
discussed with nonexclusive representatives.
The hearing officer concluded, based upon analysis of
private sector and Meyers-Milias-Brown precedent, that the
assignment of perimeter parking herein was not so basic to the
employment relationship as to trigger the employer's PECG
obligation to meet and discuss. We find that it is not
necessary to reach that issue. This is so because, even
assuming arguendo that the employer had a duty to provide a
reasonable opportunity to ACSA to meet and discuss the parking
policy involved herein with the employer prior to reaching or
taking action on the new parking policy, we find that FTB
complied with that duty.
It is clear from the record that the affected employees had
actual notice of the contemplated changes in the parking policy
7
DISCUSSION
I. 	The 	Alleged 	Failure 	to Meet 	and 	Discuss
In 	Professional 	Engineers 	in California Government 	(PECG)
(3/19/80) 	PERB 	Decision 	No. 	118-S, 	the 	Board 	held 	that, 	prior
to 	selection 	of 	an 	exclusive 	representative, 	the 	state 	employer
owes 	to 	nonexclusive 	representatives 	an 	obligation 	to 	meet 	and
discuss 	subjects 	" 	•• 	basic 	to 	the 	employment
relationship 	••• " 	prior 	to 	making 	changes 	regarding 	them.
The 	Board 	made 	it 	clear 	that 	it 	did 	not 	purport 	by 	that
decision 	to 	fully 	define 	the 	range 	of 	matters 	which 	are 	so
basic 	to 	the 	employment 	relationship 	that 	they 	must 	be
discussed 	with 	nonexclusive 	representatives.
The 	hearing 	officer 	concluded, 	based 	upon 	analysis 	of
private 	sector 	and 	Meyers-Milias-Brown 	precedent, 	that 	the
assignment 	of 	perimeter 	parking 	herein 	was 	not 	so 	basic 	to 	the
employment 	relationship 	as 	to 	trigger 	the 	employer's 	PECG
obligation 	to 	meet 	and 	discuss. 	we 	find 	that 	it 	is 	not
necessary 	to 	reach 	that 	issue. 	This 	is 	so 	because, 	even
assuming 	arguendo 	that 	the 	employer 	had 	a 	duty 	to 	provide 	a
reasonable 	opportunity 	to ACSA 	to 	meet 	and 	discuss 	the 	parking
policy 	involved 	herein 	with 	the 	employer 	prior 	to 	reaching 	or
taking 	action 	on 	the 	new 	parking 	policy, 	we 	find 	that 	FTB
complied 	with 	that 	duty.
It 	is 	clear 	from 	the 	record 	that 	the 	affected 	employees 	had
actual 	notice 	of 	the 	contemplated 	changes 	in 	the 	parking 	policy
7

long before its implementation, and long before ACSA's request
for meeting and discussion. Upon request, FTB immediately
provided a meeting, giving ACSA full opportunity to present its
alternatives to FTB's proposal and the rationale therefor.
FTB's representative at that meeting had authority to present
FTB's position, and even to alter that position if persuaded by
ACSA to do so. FTB then followed up on the discussion with a
full memorandum recounting the details of the meeting and
setting forth management's decision on the parking policy.
As we stated in PECG, supra, at pp. 9-10:
We stress, however, that the obligation
imposed on the state employer to meet with a
nonexclusive representative is not the same
as that imposed with regard to an exclusive
representative. Thus, whereas the Governor
and representatives of recognized or
certified employee organizations "have the
mutual obligation personally to meet and
confer [in good faith] promptly upon request
by either party and continue for a
reasonable period of time in order to
exchange freely information, opinions, and
proposals, and to endeavor to reach
agreement on matters within the scope of
representation . 	(Section 3517) " the
Board finds that the obligation imposed by
the statute on the state employer with
respect to nonexclusive representatives is
to provide a reasonable opportunity to meet
and discuss wages with them prior to the
time the employer reaches or takes action on
a policy decision.
In the circumstances here presented, we find that FTB met
its obligation by providing ACSA with a reasonable opportunity
long 	before 	its 	implementation, 	and 	long 	before 	ACSA's 	request
for 	meeting 	and 	discussion. 	Upon 	request, 	FTB 	immediately
provided 	a 	meeting, 	giving 	ACSA 	full 	opportunity 	to 	present 	its
alternatives 	to 	FTB's 	proposal 	and 	the 	rationale 	therefor.
FTB's 	representative 	at 	that 	meeting 	had 	authority 	to 	present
FTB's 	position, 	and 	even 	to 	alter 	that 	position 	if 	persuaded 	by
ACSA 	to 	do 	so. 	FTB 	then 	followed 	up 	on 	the 	discussion 	with 	a
full 	memorandum 	recounting 	the 	details 	of 	the 	meeting 	and
setting 	forth 	management's 	decision 	on 	the 	parking 	policy.
As 	we 	stated 	in 	PECG, 	supra, 	at 	pp. 	9-10:
We 	stress, 	however, 	that 	the 	obligation
imposed 	on 	the 	state 	employer 	to 	meet 	with 	a
nonexclusive 	representative 	is 	not 	the 	same
as 	that 	imposed 	with 	regard 	to 	an 	exclusive
representative. 	Thus, 	whereas 	the 	Governor
and 	representatives 	of 	recognized 	or
certified 	employee 	organizations 	"have 	the
mutual 	obligation 	personally 	to 	meet 	and
confer 	[in 	good 	faith] 	promptly 	upon 	request
by 	either 	party 	and 	continue 	for 	a
reasonable 	period 	of 	time 	in 	order 	to
exchange 	freely 	information, 	opinions, 	and
proposals, 	and 	to 	endeavor 	to 	reach
agreement 	on 	matters 	within 	the 	scope 	of
representation 	••• 	(Section 	3517)" 	the
Board 	finds 	that 	the 	obligation 	imposed 	by
the 	statute 	on 	the 	state 	employer 	with
respect 	to 	nonexclusive 	representatives 	is
to 	provide 	a 	reasonable 	opportunity 	to 	meet
and 	discuss 	wages 	with 	them prior 	to 	the
time 	the 	employer 	reaches 	or 	takes 	action 	on
a 	policy 	decision.
In 	the 	circumstances 	here 	presented, 	we 	find 	that 	FTB met
its 	obligation 	by 	providing 	ACSA with 	a 	reasonable 	opportunity
8

to meet and discuss the parking policy prior to finally
implementing it. 2 2
II. The Allegedly Discriminatory Assignment of Perimeter Parking
ACSA amended its charge at the hearing to encompass a
subsection 3519 (a) violation, the gravamen of which is that FTB
selected the job classifications which would receive perimeter
parking on the basis that they were exempt from SEERA coverage,
with the intent to discriminate against persons covered by
SEERA .
The factual record in this case belies the contention that
only persons exempt from SEERA coverage received perimeter
parking. Twenty-six classifications designated supervisory
received perimeter parking under the new plan. Supervisory
employees are expressly covered by and have extensive rights
2The hearing officer held that the record did not
establish that ACSA made a request for meeting and discussion
upon the Governor or his representative because FTB was not
shown to be the Governor's designated representative for
meeting and conferring pursuant to subsection 3513 (i) . She
found that this failure on ACSA's part constituted a further
basis for dismissal of the subsection 3519 (b) violation. 	We
disavow that finding. FTB held itself out as the proper
representative, and the State never contended that ACSA failed
to request a meeting with the proper entity. Under these
circumstances, we would not find that ACSA failed to request a
meeting with the statutorily defined entity, and disavow that
finding 	by 	the 	hearing 	officer.
to 	meet 	and 	discuss 	the 	parking 	policy 	prior 	to 	finally
implementing 	it.
II. 	The 	Allegedly 	Discriminatory Assignment 	of 	Perimeter 	Parking
ACSA 	amended 	its 	charge 	at 	the 	hearing 	to 	encompass 	a
subsection 	3519(a) 	violation, 	the 	gravamen 	of 	which 	is 	that 	FTB
selected 	the 	job 	classifications 	which 	would 	receive 	perimeter
parking 	on 	the 	basis 	that 	they 	were 	exempt 	from 	SEERA coverage,
with 	the 	intent 	to 	discriminate 	against 	persons 	covered 	by
SEERA.
The 	factual 	record 	in 	this 	case 	belies 	the 	contention 	that
only 	persons 	exempt 	from 	SEERA coverage 	received 	perimeter
parking. 	Twenty-six 	classifications 	designated 	supervisory
received 	perimeter 	parking 	under 	the 	new 	plan. 	Supervisory
employees 	are 	expressly 	covered 	by 	and 	have 	extensive 	rights
2The 	hearing 	officer 	held 	that 	the 	record 	did 	not
establish 	that 	ACSA made 	a 	request 	for 	meeting 	and 	discussion
upon 	the 	Governor 	or 	his 	representative 	because 	FTB 	was 	not
shown 	to 	be 	the 	Governor's 	designated 	representative 	for
meeting 	and 	conferring 	pursuant 	to 	subsection 	3513(i). 	She
found 	that 	this 	failure 	on ACSA's 	part 	constituted 	a 	further
basis 	for 	dismissal 	of 	the 	subsection 	3519(b) 	violation. 	We
disavow 	that 	finding. 	FTB held 	itself 	out 	as 	the 	proper
representative, 	and 	the 	State 	never 	contended 	that 	ACSA 	failed
to 	request 	a 	meeting 	with 	the 	proper 	entity. 	Under 	these
circumstances, 	we 	would 	not 	find 	that 	ACSA 	failed 	to 	request 	a
meeting 	with 	the 	statutorily defined 	entity, 	and 	disavow 	that
9

under SEERA. 3	3 Further, not all persons displaced from
preferential parking were members of the attorneys unit, nor
were they all shown to be represented by ACSA. 	The record thus
3SEERA sections 3522.3, 3522.4, 3522.5 and 3522.6 provide
as follows:
Section 3522.3 states:
Supervisory 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 supervisory
employee-employer relations as set forth in
Section 3522.6. Supervisory employees also
shall have the right to refuse to join or
participate in the activities of employee
organizations and shall have the right to
represent themselves individually in their
employment relations with the public
employer .
Section 3522.4 states:
Employee organizations shall have the right
to represent their supervisory employee
members in their employment relations,
including grievances, with the employer.
Employee organizations may establish
reasonable restrictions regarding who may
join and may make reasonable provisions for
the dismissal of employees from membership.
Nothing in this section shall prohibit any
employee from appearing on his or her own
behalf or through his or her chosen
representative in his or her employment
relations and grievances with the public
employer .
Section 3522.5 states:
The scope of representation for supervisory
employees shall include all matters relating
10
under 	SEERA. 	Further, 	not 	all 	persons 	displaced 	from
preferential 	parking 	were 	members 	of 	the 	attorneys 	unit, 	nor
were 	they 	all 	shown 	to 	be 	represented 	by ACSA. 	The 	record 	thus
3sEERA 	sections 	3522.3, 	3522.4, 	3522.5 	and 	3522.6 	provide
as 	follows:
Section 	3522.3 	states:
Supervisory 	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 	supervisory
employee-employer 	relations 	as 	set 	forth 	in
Section 	3522.6. 	Supervisory 	employees 	also
shall 	have 	the 	right 	to 	refuse 	to 	join or
participate 	in 	the 	activities 	of 	employee
organizations 	and 	shall 	have 	the 	right 	to
represent 	themselves 	individually 	in 	their
employment 	relations 	with 	the 	public
employer.
Section 	3522.4 	states:
Employee 	organizations 	shall 	have 	the 	right
to 	represent 	their 	supervisory 	employee
members 	in 	their 	employment 	relations,
including 	grievances, 	with 	the 	employer.
Employee 	organizations 	may 	establish
reasonable 	restrictions 	regarding 	who 	may
join 	and 	may 	make 	reasonable 	provisions 	for
the 	dismissal 	of 	employees 	from 	membership.
Nothing 	in 	this 	section 	shall 	prohibit 	any
employee 	from 	appearing 	on 	his 	or 	her 	own
behalf 	or 	through 	his 	or 	her 	chosen
representative 	in 	his 	or 	her 	employment
relations 	and 	grievances 	with 	the 	public
employer.
Section 	3522.5 	states:
The 	scope 	of 	representation 	for 	supervisory
employees 	shall 	include 	all 	matters 	relating
10

to employment conditions and supervisory
employee-employer relations including wages,
hours, and other terms and conditions of
employment.
Section 3522.6 states:
Upon request, the state shall meet and
confer with employee organizations
representing supervisory employees. 	"Meet
and confer" means that they shall consider
as fully as the employer deems reasonable
such presentation as are made by the
employee organization on behalf of its
supervisory members prior to arriving at a
determination of policy or course of action.
does not reflect a pattern of displacing ACSA-represented
persons in particular or persons represented by employee
organizations in general.
We need not decide whether discrimination soley on the
basis of SEERA-covered status, (as opposed to exercise of
SEERA-protected rights) could constitute a violation of
subsection 3519 (a) , because the facts of this case do not
indicate that FTB selected classifications for preferential
parking strictly along SEERA-coverage lines. Further, there is
no evidence from which we could conclude that exercise of SEERA
rights by any group of employees motivated the FTB to select
the positions it selected for preferential parking.
In Novato Unified School District (4/30/82) PERB Decision
No. 210, the Board clarified the test for violations of
11
does 	not 	reflect 	a 	pattern 	of 	displacing 	ACSA-represented
persons 	in 	particular 	or 	persons 	represented 	by 	employee
organizations 	in 	general.
We 	need 	not 	decide 	whether 	discrimination 	soley 	on 	the
basis 	of 	SEERA-covered 	status, 	(as· opposed 	to 	exercise 	of
SEERA-protected 	rights) 	could 	constitute 	a 	violation 	of
subsection 	3519(a), 	because 	the 	facts 	of 	this 	case 	do 	not
indicate 	that 	FTB 	selected 	classifications 	for 	preferential
parking 	strictly 	along 	SEERA-coverage 	lines. 	Further, 	there 	is
no 	evidence 	from 	which 	we 	could 	conclude 	that 	exercise 	of 	SEERA
rights 	by 	any 	group 	of 	employees 	motivated 	the 	FTB 	to 	select
the 	positions 	it 	selected 	for 	preferential 	parking.
In 	Novato 	Unified 	School 	District 	(4/30/82) 	PERB 	Decision
No. 	210, 	the 	Board 	clarified 	the 	test 	for 	violations 	of
to 	employment 	conditions 	and 	supervisory
employee-employer 	relations 	including 	wages,
hours, 	and 	other 	terms 	and 	conditions 	of
employment.
Section 	3522.6 	states:
Upon 	request, 	the 	state 	shall 	meet 	and
confer 	with 	employee 	organizations
representing 	supervisory 	employees. 	"Meet
and 	confer" 	means 	that 	they 	shall 	consider
as 	fully 	as 	the 	employer 	deems 	reasonable
such 	presentation 	as 	are 	made 	by 	the 	·
employee 	organization 	on 	behalf 	of 	its
supervisory 	members 	prior 	to 	arriving 	at 	a
determination 	of 	policy 	or 	course 	of 	action.
11

subsection 3543.5(a) of the Educational Employment Relations
Act (hereafter EERA) 4 in cases in which it is alleged that
the employer had taken adverse personnel action against
employees in retaliation for protected activity. Stated
simply, charging parties must demonstrate that the employer 	employer
would not have so acted but-for employee participation in
protected activity. In State of California (Department of
Developmental Services) (7/28/82) PERB Decision No. 228-S, the
Board held that the same test is applicable to such cases
arising under subsection 3519 (a) of SEERA.
ACSA has failed to provide any evidence that, but for
attorneys' participation in protected activity, the State would
not have changed the assignment of perimeter parking spaces.
The totality of the evidence produced fails to support an
inference of unlawful motivation on the part of the State.
4EERA is codified at Government Code section 3540 et
seq. 	Subsection 3543.5(a) provides as follows:
It shall be unlawful for a public school
employer 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.
subsection 	3543.S(a) 	of 	the 	Educational 	Employment 	Relations
Act 	(hereafter 	EERA)4
12
in 	cases 	in which 	it 	is 	alleged 	that
the 	employer 	had 	taken 	adverse 	personnel 	action 	against
employees 	in 	retaliation 	for 	protected 	activity. 	Stated
simply, 	charging 	parties 	must 	demonstrate 	that 	the
would 	not 	have 	so 	acted 	but-for 	employee 	participation 	in
protected 	activity. 	In 	State 	of 	California 	(Department 	of
Developmental 	Services) (7/28/82) 	PERB 	Decision 	No. 	228-S, 	the
Board 	held 	that 	the 	same 	test 	is 	applicable 	to 	such 	cases
arising 	under 	subsection 	3519(a) 	of 	SEERA.
ACSA has 	failed 	to 	provide 	any 	evidence 	that, 	but 	for
attorneys' 	participation 	in 	protected 	activity, 	the 	State 	would
not 	have 	changed 	the 	assignment 	of 	perimeter 	parking 	spaces.
The 	totality 	of 	the 	evidence 	produced 	fails 	to 	support 	an
inference 	of 	unlawful 	motivation 	on 	the 	part 	of 	the 	State.
4EERA 	is 	codified 	at 	Government 	Code 	section 	3540 	et
seq. 	Subsection 	3543.S(a) 	provides 	as 	follows:
It 	shall 	be 	unlawful 	for 	a 	public 	school
employer 	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.
12

Thus, we conclude that no subsection 3519 (a) violation has been
proven. 	Novato, supra.
ORDER
Upon the foregoing facts, conclusions of law, and the
entire record in this case, the Public Employment Relations
Board ORDERS that the unfair practice charges filed by the
Association of California State Attorneys and Hearing Officers
against the State of California (Franchise Tax Board) is hereby
DISMISSED.
By: Virgil Jensen, Member 	Harry Gluck, Chairperson
John Jaeger, Member
13
Thus, 	we 	conclude 	that 	no 	subsection 	3519(a) 	violation 	has 	been
proven. 	Novato, 	supra.
ORDER
Upon 	the 	foregoing 	facts, 	conclusions 	of 	law, 	and 	the
entire 	record 	in 	this 	case, 	the 	Public 	Employment 	Relations
Board 	ORDERS 	that 	the 	unfair 	practice 	charges 	filed 	by 	the
Association 	of 	California 	State 	Attorneys 	and 	Hearing 	Officers
against 	the 	State 	of 	California 	(Franchise 	Tax 	Board) 	is 	hereby
DISMISSED.
By: 	Vir
~-.M:.'.e:-::m::;b::-e=-r-+----
13