State of California (Department of General Services) (PERB 0302S)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA 	STATE 	EMPLOYEES'
ASSOCIATION,
Charging 	Party,
v.
STATE OF CALIFORNIA, 	DEPARTMENT
OF GENERAL SERVICES ,
Respondent.
Case No. 	S-CE-58-S
PERB Decision No. 	302-S
April 8, 	1983
Appearances; 	M. 	Jeffrey Fine, 	Attorney for California State
Employees' 	Association; 	Barbara T. 	Stuart, Attorney for 	State
of California, 	Department of General Services.
Before Tovar, 	Jaeger 	and Burt, Members.
DECISION
JAEGER, Member: 	This 	case 	is 	before 	the Public Employment
Relations Board 	(PERB 	or 	Board) 	based on 	an 	appeal 	filed 	by 	the
California State Employees' 	Association 	(Association) 	from 	the
Administrative Law Judge's 	Notice of 	Refusal 	to 	Issue Complaint
and 	Dismissal Without Leave 	to Amend 	pursuant 	to 	PERB
regulation, 	section 	32630(a).1 The Administrative 	Law Judge
1PERB 	Rules 	and 	Regulations 	are 	codified 	at
California Administrative Code, 	title 	8, 	section 31000 	et 	seq.;
section 32630(a) 	states:
(a) 	The Board may 	refuse 	to 	issue 	a
complaint on 	its 	own motion or 	a motion
filed 	by a party. 	Refusal 	to 	issue a
complaint 	shall 	constitute 	dismissal of 	the
charge. 	The 	refusal may be 	issued with or
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(ALJ) 	found 	t h a t 	while 	the 	charge 	may 	s t a t e 	a 	prima 	f a c i e
v i o l a t i o n 	of 	the 	S t a t e 	Employer-Employee 	Relations 	Act
(hereafter 	SEERA), 	the 	Public 	Employment 	Relations 	Board 	has
found 	t h a t 	"no 	useful 	purpose 	would 	be 	served 	by 	reviewing 	the
i s s u e . "
We 	have 	reviewed 	the ALJ's 	reasons 	for 	dismissal 	as 	well 	as
the 	A s s o c i a t i o n ' s 	appeal 	and 	the 	S t a t e 	of 	C a l i f o r n i a ,
Department 	of 	General 	Services 	(State 	or 	Department) 	response
t h e r e t o . 	We 	conclude 	that 	the 	ALJ 	erred 	in 	refusing 	to 	issue 	a
complaint 	in 	t h i s 	matter 	for 	the 	reasons 	discussed 	below.
DISCUSSION
The 	Allegations 	of 	the 	Charge.
On May 	19, 	1981, 	the Association 	f i l e d 	the 	i n s t a n t 	charge
complaining 	that 	the 	Department 	v i o l a t e d 	s e c t i o n s 	3516.5 	and
3517 	of 	the 	SEERA.2 The 	Association 	alleged 	t h a t 	the 	S t a t e
without 	leave 	to 	amend 	the 	charge 	and 	s h a l l
be 	served 	upon 	a l l 	p a r t i e s 	with 	a 	copy 	of
the 	charge 	if 	the 	charge 	has 	not 	previously
been 	served. 	The 	refusal 	s h a l l 	be 	in
writing 	and 	include 	a 	statement 	of 	the
grounds 	for 	refusal 	including 	the 	grounds
for 	d e n i a l 	of 	leave 	to 	amend.
2SEERA 	is 	codified 	at 	Government 	Code 	s e c t i o n 	3512
et 	seq. 	Subsection 	3516.5 	s t a t e s :
Except 	in 	cases 	of 	emergency 	as 	provided 	in
t h i s 	s e c t i o n , 	the 	employer 	s h a l l 	give
reasonable 	written 	notice 	to 	each 	recognized
employee 	organization 	affected 	by 	any 	law,
rule, resolution, or 	regulation directly
relating to matters within the scope of
N	
2

made 	numerous 	unilateral 	changes 	in 	terms 	and 	conditions 	of
employment 	without 	notifying 	or 	providing 	the 	nonexclusive
representation proposed 	to 	be 	adopted 	by 	the
employer, 	and 	shall 	give 	such 	recognized
employee 	organizations 	the 	opportunity 	to
meet 	and 	confer 	with 	the 	administrative
officials 	or 	their 	delegated 	representatives
as may 	be 	properly 	designated 	by law.
In 	cases 	of 	emergency 	when 	the 	employer
determines that a law, 	rule, 	resolution, 	or
regulation must 	be 	adopted 	immediately
without prior 	notice 	or 	meeting 	with 	a
recognized 	employee 	organization, 	the
administrative officials 	or 	their 	delegated
representatives 	as 	may 	be 	properly
designated 	by 	law 	shall 	provide 	such 	notice
and 	opportunity 	to meet 	and 	confer 	in 	good
faith 	at 	the earliest practical 	time
following 	the adoption of 	such 	law, 	rule,
resolution, or 	regulation.
SEERA subsection 	3517 	states:
The Governor, 	or 	his 	representative as may
be 	properly designated 	by 	law, 	shall 	meet
and 	confer 	in 	good 	faith 	regarding 	wages,
hours, 	and other 	terms 	and 	conditions 	of
employment 	with 	representatives 	of
recognized 	employee 	organizations, 	and 	shall
consider 	fully 	such 	presentations 	as 	are
made 	by 	the 	employee 	organization on 	behalf
of 	its members prior 	to arriving 	at 	a
determination of 	policy 	or 	course 	of 	action.
"Meet 	and 	confer 	in good 	faith" 	means 	that
the Governor 	or 	such 	representatives 	as 	the
Governor 	may 	designate, 	and 	representatives
of 	recognized 	employee 	organizations, 	shall
have 	the mutual obligation personally 	to
meet 	and 	confer 	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 prior 	to
33

representative 	the 	opportunity 	to meet 	and discuss 	the
changes. 	The 	unilateral 	actions 	alleged 	to 	have 	occurred
include: 	(1) 	changes 	in 	the duties of printing 	trades
assistants 	II 	in the press 	room as 	of May 	4, 	1981, 	including
increase 	in workload; 	(2) 	changes 	in 	the procedure 	for
notifying 	eligible printing 	trades 	assistants 	listed 	on 	the
printing 	trades 	assistants 	II 	reemployment 	list; 	(3) 	changes 	in
the 	time base 	of 	printing 	trades 	assistants 	II 	and 	offset press
assistants 	from 	permanent 	full-time 	to 	permanent 	intermittent
status 	effective May 	19, 	1981; 	(4) 	transferring 	printing 	trades
assistants 	I 	from 	the 	bindery 	room 	to 	the 	press 	room 	contrary
to 	the policy of 	the State Personnel Board; 	(5) 	changes 	in the
policy 	used 	to 	determine 	the 	appropriateness of 	the 	use of
permanent 	intermittent 	employees; 	and 	(6) 	changes 	in the past
practice 	of 	granting 	red circle 	rates 	for 	demoted 	employees.
The 	charge 	further 	alleges 	that 	the State 	refused 	to 	supply
data 	regarding 	workload 	and 	the 	need 	for 	layoff, 	and 	refused 	to
attend 	a meeting 	scheduled 	to meet 	and 	discuss 	the 	above
changes.3
the 	adoption by 	the 	state 	of 	its 	final
budget 	for 	the 	ensuing 	year. 	The 	process
should 	include 	adequate 	time 	for 	the
resolution of 	impasses.
3On 	June 10, 	1981, 	the Association was ordered, 	pursuant
to 	title 	8, 	California Administrative Code, 	section 	32650 	to
particularize 	its charge. 	On July 	2, 	1981, 	the Association
complied 	with 	the 	order 	and 	provided 	a 	detailed 	statement
containing 	the 	substance 	of 	these 	allegations.
4

Standard of 	Review.
In 	considering 	a motion 	to 	dismiss 	PERB 	has 	held 	that 	the
Board will 	assume, 	for 	purposes of 	ruling on 	the motion, 	that
the 	essential 	facts 	alleged 	in 	the 	charge 	are 	true. 	San Juan
Unified 	School District 	(3/10/77) 	EERB Decision No. 	12.4
Thus 	we 	assume 	that 	the 	allegations of 	unilateral 	changes
without meeting 	and 	discussing 	are 	true, 	and 	conclude 	that 	the
Association 	has 	stated a prima 	facie 	case 	within 	the meaning 	of
PERB regulation, 	section 32630.
The Refusal To 	Issue A Complaint And The Dismissal 	Without
Leave 	To Amend
The ALJ 	concluded 	that 	pursuant 	to 	the Board's 	holding 	in
Marin Community College District 	(4/3/81) 	PERB Decision
No. 	161, 	the charge 	should be dismissed. 	He 	found 	that 	no
useful 	purpose 	would 	be 	served 	by 	litigating 	the matter
because, 	as 	in Marin, 	the enforceable but more 	limited 	rights
of 	the 	nonexclusive 	representative 	merged 	into 	the 	broader
rights 	of 	the 	exclusive 	representative 	when 	the Association was
certified 	as 	the 	exclusive 	representative. 	We do 	not 	agree.
In Professional Engineers 	in California Government 	(PECG)
(3/19/80) 	PERB Decision No. 	118-S, 	the Board found 	that
sections 	3515 	and 	3515.5 	of 	SEERA require 	the 	employer 	to
provide 	notice 	and 	the 	opportunity 	to meet 	and discuss 	subjects
4Prior 	to January 1, 	197 8, 	PERB was 	known 	as 	the
Educational Employment Relations Board 	or 	EERB.
55

basic 	to the employment relationship with nonexclusive employee
representatives prior 	to taking action on a policy. 	Thus, 	the
charge before 	us alleges matters sufficiently basic 	to the
employment relationship to meet the Board's test 	in PECG, 	supra,
In Marin, 	however, 	the Board reviewed the dismissal of an
allegation of a single unilateral change, which was filed and
dismissed prior 	to a unit determination or 	the selection of an
exclusive representative. 	When 	the matter 	finally reached the
Board, 	approximately four years had passed and the 	charging
party had become the exclusive representative. 	The Board
concluded that no useful purpose would be served by reviewing
the single issue 	in dispute because of 	the passage of 	time and
the distinctive 	factual 	circumstances 	of 	the case.5
The 	charge before the Board 	today 	is dissimilar 	from
Marin. 	The events 	at issue allegedly occurred or 	took effect
during May and June of 1981. 	The allegations include six
unilateral changes 	in the status quo and 	two refusals 	to meet
and discuss 	and/or provide information. 	In addition to the
quantity and 	severity of 	the unfair 	practices 	alleged 	the
timing 	involved 	is 	significant in 	that, 	during 	the period
5In Marin, 	the ALJ's dismissal of 	the charge was based on
the Board's holding in San Dieguito Union High School District
(9/2/77) EERB Decision No. 22, that a nonexclusive
representative did not have meet and discuss rights. 	The Board
reversed San Dieguito when 	it 	issued Los Angeles Unified School
District 	(2/17/83) 	PERB Decision No. 	285, Petition for Writ of
Review filed 	3/21/83, Court of Appeal, Second Appellate
District, Case No. 	68167.
66

between 	the 	time 	the 	charge 	was 	f i l e d 	and 	the 	date 	on 	which 	it
was 	dismissed, 	a 	r e p r e s e n t a t i o n 	e l e c t i o n 	occurred 	and 	the
Association 	became 	the 	exclusive 	r e p r e s e n t a t i v e 	of 	these
employees.6 The 	ALJ's 	conclusion 	t h a t 	t h i s 	event 	formed 	the
b a s i s 	for 	dismissal 	of 	the 	charge 	is 	erroneous 	because 	it
misconstrues 	the 	Board's 	reasoning 	in Marin. 	This 	case 	is
d i s t i n g u i s h a b l e 	from Marin 	because 	an 	e l e c t i o n 	campaign 	was 	in
progress 	at 	the 	time 	these 	alleged 	unfairs 	occurred, 	in Marin,
no 	unit 	had 	been 	determined 	and 	no 	e l e c t i o n 	was 	scheduled.
F u r t h e r , 	in 	t h i s 	case 	the 	charging 	party 	became 	the 	exclusive
r e p r e s e n t a t i v e 	subsequent 	to 	the 	dismissal 	of 	the 	charge 	but
prior 	to 	the 	Board's 	review 	of 	the 	d i s m i s s a l . 	Thus 	no
s i g n i f i c a n t 	lapse 	of 	time 	or 	m a t e r i a l 	change 	in 	the 	p a r t i e s '
l e g a l 	r e l a t i o n s h i p 	had 	occurred 	since 	the 	dismissal 	was 	issued.
We 	therefore 	conclude 	that 	the 	charge 	should 	not 	have 	been
dismissed 	and 	order 	that 	a 	complaint 	be 	filed 	and 	the 	matter
remanded 	for 	t r i a l .
ORDER
Upon 	the 	foregoing 	Decision 	and 	the 	record 	as 	a 	whole, 	the
Public Employment 	Relations 	Board 	ORDERS 	that 	the
Administrative 	Law 	Judge's 	Refusal 	to 	Issue 	Complaint 	and
6 O f f i c i a l 	notice 	is 	hereby 	taken 	of 	the 	fact 	t h a t 	the
Association 	became 	the 	exclusive 	r e p r e s e n t a t i v e 	for 	p r i n t i n g
trades 	employees 	on July 10, 	1981. 	A memorandum of
understanding 	was 	negotiated 	e f f e c t i v e 	July 	1, 	1982 	to
June 	3, 	1984. 	The 	charge 	was 	f i l e d 	in May 	1981.
77

Dismissal 	Without Leave 	to Amend 	is 	reversed. 	The matter 	is
remanded 	to 	the Chief Administrative Law Judge who is ORDERED
to 	issue 	the Complaint 	and 	set 	the matter 	for 	hearing 	pursuant
to PERB Rules and Regulations.
Member 	Burt 	joined 	in 	this Decision.
Member Tovar's 	dissent begins 	on page 9.
8

Tovar, 	dissenting: 	I would 	affirm 	the 	hearing officer's
dismissal 	for 	the 	following 	reasons:
The 	majority opinion 	of 	my colleagues 	implies 	a 	knee-jerk
approach 	to 	the 	application 	of 	SEERA 	and 	related 	PERB
regulations. 	If 	a prima facie case 	has 	been established, 	then
the majority 	would 	automatically 	issue 	a 	complaint. 	Granted,
PERB 	regulation 	subsection 	32652(a) 	provides 	that 	a complaint
shall 	issue 	if a prima facie 	case 	is 	established; 	however, 	such
a 	regulation must 	be 	read 	in conjunction 	with 	the Act 	and 	does
not supersede 	the Act's mandate.
Section 	3514.5 and 	subsection 	3514.5(c) 	states 	that:
The 	initial 	determination 	as 	to whether 	the
charges 	of 	unfair 	practices 	are 	justified,
and, 	if 	so, what remedy is 	necessary to
effectuate 	the 	purposes 	of 	this 	chapter,
shall 	be 	a matter 	within 	the exclusive
jurisdiction 	of 	the 	board 	. . . .
(c) 	The 	board 	shall 	have 	the 	power 	to 	issue
a 	decision 	and 	order 	directing 	an offending
party 	to 	cease 	and 	desist 	from 	the 	unfair
practice 	and 	to 	take 	such 	affirmative
action, 	including 	but 	not 	limited 	to 	the
reinstatement 	of 	employees 	with or 	without
back pay, 	as will 	effectuate 	the 	policies 	of
this 	chapter.
Further, 	PERB 	regulation 	section 	32630(a) 	provides 	that
"the 	Board may 	refuse 	to 	issue 	a 	complaint 	on 	its 	own motion or
a motion filed by a party. 	. 	. 	. 	The 	refusal may be 	issued
with 	or 	without leave 	to 	amend 	the 	charge 	. . . "
9
• 	• 	• 	• 	• 	•
9

Clearly, 	the 	Board 	has 	the 	discretion 	to refuse 	to 	issue 	a
complaint 	and 	to dismiss 	without leave 	to amend. 	Unlike 	a
court, 	which 	has 	no discretion 	to withhold 	jurisdiction 	where 	a
violation of 	law 	has 	been 	charged, 	the Board 	is 	an
administrative 	agency 	whose 	function 	is 	to 	adjudicate 	public
rights 	in 	a manner 	that 	will 	effectuate 	the 	policies 	of 	the
Act. 	Even CSEA acknowledges 	that 	administrative 	convenience 	or
necessity may dictate, 	from 	time 	to 	time, 	the exercise of
discretion.
The 	discretionary decision 	of 	the 	Board's 	agent 	to 	refuse
to 	issue a 	complaint 	was 	appropriate 	in 	the 	instant 	case. 	The
majority attempts 	to 	distinguish Marin by 	reciting 	a list 	of
factual 	differences 	without 	substantively 	explaining 	how 	those
factual 	differences 	warrant 	a different 	outcome. 	The 	majority
fails 	to 	explain what 	useful 	purpose 	would 	be 	served 	in 	issuing
a complaint 	in 	this 	case.
Of concern 	to me 	is 	whether, 	and 	to what 	extent, 	the
negotiating 	position of 	the 	charging 	party 	is 	significantly
jeopardized 	by 	the 	dismissal of 	the 	allegations. 	On 	the 	one
hand, 	the 	employer 	has 	the obligation 	to meet 	and 	consult 	with
the 	non-exclusive 	representative 	over 	issues 	fundamental 	to 	the
employment 	relationship, 	such 	as 	wages 	and fringe 	benefits.
PECG, 	supra; 	California State University, 	Sacramento 	(4/30/82)
PERB Decision No. 	211-H; 	Los Angeles Unified School District
(2/17/83) 	PERB Decision No. 	285.
10

However, 	assuming, 	arguendo, 	that we were 	to find that 	the
Department 	failed 	to meet 	and 	discuss 	the 	matters 	involved
here, 	the Department 	is 	still 	under 	no obligation 	to adopt 	any
of 	the 	charging 	party's 	recommendations. 	This 	is 	so 	because
the meet 	and discuss process 	is 	not a 	binding 	bilateral process
as 	is 	the 	duty 	to meet 	and 	negotiate 	in good 	faith. 	Since 	the
charging 	party 	now 	enjoys 	the 	status 	of 	exclusive
representative, 	no 	useful 	purpose 	would 	be 	served 	by 	reviewing
the 	issue of 	the meet 	and 	discuss 	obligation which existed
during 	the 	earlier 	non-exclusive 	relationship without 	a 	further
showing 	of 	harm.
I, 	therefore, do not 	feel 	it 	is 	administratively prudent 	to
reverse 	the 	administrative 	law 	judge 	and 	allow 	a 	complaint 	to
be 	issued 	in 	the 	instant 	case. 	The 	charging 	party's
negotiating 	position 	is much 	stronger 	now, 	and 	a 	finding 	in
favor 	of 	the 	charging 	party would 	not 	significantly 	add 	to 	its
negotiating posture. 	In fact, 	I 	take 	administrative 	notice of
the 	fact 	that 	the 	charging 	party 	has 	entered 	into 	a memorandum
of 	understanding 	with 	the 	state 	employer 	which 	runs 	from
July 1, 	1982 to June 3, 	1984. 	Under 	the 	particular
circumstances of 	this case, 	it 	is clear 	to me 	that dismissal 	is
the 	appropriate 	action.1
1My 	dissent 	in 	this 	instant 	case 	in no 	way 	diminishes 	my
previous 	and 	continued 	position on 	the 	rights 	which 	have 	been
afforded 	to 	non-exclusive 	representatives. 	See Los Angeles
Unified School District, 	supra.
11

STATE 	OF 	CALIFORNIA
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA 	STATE 	EMPLOYEES
ASSOCIATION,
Charging 	Party,
v.
STATE 	OF CALIFORNIA, 	DEPARTMENT OF
GENERAL 	SERVICES,
Respondent.
Case No. 	S-CE-58-S
NOTICE 	OF 	REFUSAL 	TO
ISSUE 	COMPLAINT AND
DISMISSAL 	WITHOUT 	LEAVE
TO AMEND
(10/7/81)
Notice 	is 	hereby given 	that 	no 	complaint 	will 	be 	issued 	in
the 	above 	captioned 	unfair 	practice 	charge 	and 	that 	it 	is
hereby dismissed 	without 	leave 	to 	amend. 	This 	action 	is 	taken
on 	the 	ground 	that 	while 	the 	charge 	may 	state 	a 	prima 	facie
violation 	of 	the 	State 	Employer-Employee 	Relations 	Act
(hereafter 	SEERA), 	the Public Employment Relations Board 	has
found 	that 	"no 	useful 	purpose 	would 	be 	served 	by 	reviewing 	the
issue" 	in 	similar 	cases 	and 	declines 	to 	take 	jurisdiction over
the 	case.1
BACKGROUND
The 	Charging 	Party, 	California 	State 	Employees 	Association
(hereafter 	CSEA) 	filed 	this 	unfair 	practice 	charge 	with 	the
11 SEERA 	is 	cited 	at 	Government 	Code 	section 	3512 	et 	seq.
All 	statutory 	references 	herein 	are 	to SEERA 	unless 	otherwise
noted.
)
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)	______________ )

Public Employment Relations Board 	(hereafter PERB) 	on
May 19, 	1981. 	An order 	to particularize was 	issued by PERB on
June 10, 	1981. 	A particularization was 	filed on July 3. 	An
answer 	to 	the particularization and a motion 	to 	dismiss was
filed on July 21.
The particularized 	charge 	and 	accompanying documents may be
summarized as follows: 	the Respondent, 	State of California,
Department of General Services has 	violated 	sections 	3516.5 	and
35172 of SEERA by making numerous 	unilateral changes 	in the
2Section 3516.5:
Except 	in cases of emergency as provided 	in
this section, the State, 	its agencies,
departments, commissions, or boards or its
representatives as may be properly
designated by law, 	shall give reasonable
written notice 	to each 	recognized 	employee
organization affected by any law, 	rule,
resolution, 	or regulation directly relating
to matters within the scope of
representation proposed 	to be adopted 	by 	the
state 	. . . .
Section 3517:
The Governor, or his representative as may
be properly designated by law, 	shall meet
and confer 	in good 	faith 	regarding wages,
hours, 	and other 	terms and conditions of
employment with 	representatives of
recognized 	employee organizations, 	and 	shall
consider 	fully such presentations 	as 	are
made by the employee organization on 	behalf
of 	its members prior 	to arriving at a
determination of policy or 	course of action.
"Meet and confer 	in good 	faith" means 	that
the Governor or 	such 	representatives 	as 	the
2
• 	• 	• 	• 	•
2

terms 	and 	conditions of 	employment of State Print Plant
employees 	without 	notifying or 	providing an opportunity for 	the
nonexclusive 	representative 	employee organization 	to meet 	and
discuss 	such changes. 	The 	alleged unilateral changes may be
summarized 	as: 	(1) 	changes 	in the duties of printing trades
assistants 	II 	in the press 	room as of May 4, 	1981 	including
increase in workload; 	(2) 	changes in the procedure of notifying
eligible printing 	trades 	assistants 	listed 	on 	the printing
trades assistants II reemployment list; 	(3) 	changes in the time
base of printing trades 	assistants 	II and offset press
assistants 	from permanent 	full-time 	to permanent 	intermittent
status affective May 19, 	1981; 	(4) 	transferring printing trades
assistants 	I 	from the bindery room to the press 	room contrary
to policy of the State Personnel Board; 	(5) 	change 	in the
policy used 	to determine 	the appropriateness 	of use of
permanent intermittent employees; 	(6) 	refusal to supply data
showing workload and the need for layoff; 	(7) 	refusal of 	.
management 	to attend 	a meeting 	scheduled 	to meet 	and 	discuss
Governor may designate, 	and 	representatives
of recognized employee organizations, 	shall
have 	the mutual obligation personally to
meet 	and 	confer 	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 prior 	to
the adoption by 	the 	state of 	its 	final
budget 	for 	the ensuing year. 	The process
should 	include adequate" time for 	the
resolution of 	impasses.
w	
3

one or 	more 	of 	the 	above changes; 	(8) 	change 	in 	the past
practice 	of 	granting 	red 	circle 	rates 	for 	demoted 	employees.
Official 	notice 	is 	taken 	of 	the 	fact 	that 	the Charging
Party, 	CSEA, 	was certified by PERB on July 10, 	1981, 	as 	the
exclusive 	representative 	of 	Printing 	Trades 	Employees 	(Unit 	14)
for 	purposes 	of 	negotiations 	under 	SEERA.
DISCUSSION
CSEA has 	alleged 	that 	its 	rights 	as 	a 	nonexclusive 	employee
organization 	to 	meet 	and 	discuss 	proposed 	changes 	in 	working
conditions 	with 	the 	employer 	prior 	to 	the 	selection 	of 	an
exclusive 	representative 	is 	protected 	by 	sections 	3516.5 	and
3517 	of SEERA. 	The 	sections 	are 	incorrectly cited. 	It will 	be
assumed 	that 	the 	facts 	alleged 	request 	a 	violation 	of 	section
3515.5 	to 	be 	found.3
The 	facts 	asserted 	by CSEA 	are 	assumed 	to 	be 	true 	for
purposes 	of 	this 	ruling.4
3Both 	sections 	3516.5 	and 	3517 	refer 	to 	the 	rights 	of
exclusive 	representative 	employee 	organizations. 	Section
3515.5 	reads:
Employee 	organizations 	shall 	have 	the 	right
to 	represent 	their 	members 	in 	their
employment 	relations 	with 	the 	state, 	except
that 	once 	an 	employee organization 	is
recognized 	as 	the 	exclusive 	representative
of 	an 	appropriate 	unit, 	the 	recognized
employee 	organization 	is 	the 	only
organization 	that 	may 	represent 	that 	unit 	in
employment relations with 	the 	state. 	. 	. 	.
4San 	Juan 	Unified 	School 	District 	(3/10/77) 	EERB 	Decision
No. 	12. 	The 	facts 	are 	not 	restated 	in detail 	because 	of 	the
nature 	of 	this 	ruling.
44

PERB 	has 	found 	that 	employees 	have 	the 	right 	to 	be
represented 	by 	nonexclusive 	representatives 	prior 	to 	the
selection 	of 	an 	exclusive 	representative. 	In Professional
Engineers 	in California Government 	v. 	State 	of California
(3/19/80) 	PERB Decision No. 	118-S, 	the Board 	found 	that
sections 	3515 	and 	3515.5 	require 	the 	state 	employer 	to 	provide
a 	reasonable 	opportunity 	to meet 	and 	discuss 	subjects 	basic 	to
the 	employment 	relationship 	with 	nonexclusive 	representative
employee 	organizations 	prior 	to 	reaching 	or 	taking 	action 	on 	a
policy 	decision.
At 	the 	time 	of 	filing 	of 	the 	unfair 	practice 	charge 	CSEA
was 	a 	nonexclusive 	representative 	of 	printing 	trade 	employees
within 	the 	Department 	of General 	Services. 	During 	the 	pendency
of 	the 	charge 	CSEA was 	selected 	by 	the 	appropriate 	unit 	as 	its
bargaining 	agent 	and 	was 	certified 	by PERB 	to 	be 	the 	exclusive
representative. 	Under 	the Board's 	test 	established 	in 	PECG 	v.
State 	cited 	above 	the 	charge 	of 	CSEA 	generally would 	state 	a
prima 	facie 	case. 	However, 	in United 	Professors 	of Marin 	v.
Marin Community College 	District 	(4/3/81) 	PERB 	Decision
No. 	161, 	the Board 	dismissed 	a 	similar 	prima 	facie 	unfair
practice 	charge 	under 	the 	Educational 	Employment 	Relations
A c t 5 (hereafter 	EERA) 	on 	the 	basis 	that 	the 	enforceable
S5The 	Educational Employment 	Relations 	Act 	is 	codified 	at
Government Code 	section 	3540 	et 	seq. 	The 	statute 	governs
collective 	bargaining 	for 	public 	schools 	and 	community 	colleges
5

rights 	of 	a 	nonexclusive 	representative 	had 	merged 	into 	the
rights 	of 	an 	exclusive 	representative. 	The 	Board 	stated,
. 	. 	. 	the 	record 	indicates 	that now 	the
charging 	party 	is 	certified 	as 	the 	exclusive
representative 	of 	the 	employees 	on 	whose
behalf 	it 	sought 	to meet 	and 	consult. 	As 	a
result 	of 	this 	development, 	the 	employer 	now
clearly has 	the 	duty 	to 	meet 	and 	negotiate
with 	charging 	party. 	The Board 	therefore
finds 	that 	no 	useful 	purpose 	would 	be 	served
by reviewing 	the 	issue 	of 	whether, 	on
June 	29, 	1977 	the 	employer 	should 	have 	met
and 	consulted 	with 	UPM 	prior 	to 	the
complained 	of 	actions. 	(Emphasis 	added.)
The 	employer 	has 	cited 	Marin Community College 	District
decision 	as 	a 	basis 	for 	its 	motion 	to dismiss. 	The 	motion
indicates 	that 	section 	3543.1 (a) 	of EERA 	granting 	rights 	to
nonexclusive 	representatives 	reads 	substantially 	the 	same 	as
section 	3515.5 	of SEERA. 	In State 	of California 	v. 	Department
of Corrections 	(5/5/80) 	PERB Decision No. 	127-S, 	the Board
indicated 	that 	while 	it 	is 	not 	bound 	to 	apply decisions 	issued
under 	EERA 	to 	SEERA cases, 	the 	similarity of 	language 	and
purpose 	between 	the Acts 	allows 	for 	applying 	similar 	rationale,
Having 	found 	the 	relevant 	provisions 	between 	the 	two Acts
to 	be 	similar 	and 	finding 	no 	factual 	distinctions 	indicated 	in
the Marin decision 	to 	limit 	its 	impact, 	it 	is 	found 	that 	the
Board 	precedent 	in Marin must 	apply here. 	The 	precedent
appears 	to 	be 	that 	the Board 	has 	chosen 	to 	decline 	taking
jurisdiction 	to 	adjudicate 	retroactively 	the 	more 	limited
6

rights 	of 	a 	nonexclusive 	representative 	after 	that 	organization
is 	granted 	the 	more 	extensive 	rights 	of 	an 	exclusive
representative.6 CSEA 	apparently argues 	that 	the 	Marin 	case
cannot 	be 	applied 	to SEERA because 	PERB 	chose 	not 	to 	overrule 	a
previous 	decision 	(San 	Dieguito 	Union 	High 	School 	District
(9/22/77) 	EERB Decision No. 	22) 	denying any 	"meet 	and 	discuss"
rights 	to 	nonexclusive 	representatives 	under 	EERA 	when 	it
granted 	such 	rights 	to 	nonexclusive 	employee 	organizations
under SEERA 	in 	the Professional Engineers,, 	supra, 	decision.
Thus, 	it might 	be 	argued 	that 	the Board 	in M a n n , 	supra,
decided 	not 	to 	establish 	less 	than 	full 	bargaining 	rights
retroactively 	under 	EERA 	whereas 	a 	different 	result 	should
occur 	under 	SEERA. 	The Marin 	decision makes 	no 	such
-
distinction 	on 	its 	face, 	and 	thus 	its 	precedent 	will 	be 	applied
to 	SEERA 	until 	further 	clarified 	by 	the 	Board 	itself. 	This
refusal 	to 	issue 	a 	complaint 	and 	dismissal 	without 	leave 	to
amend 	is 	authorized 	pursuant 	to 	the 	Board's 	discretion 	under
section 3541.3 (i):
To 	investigate 	unfair practice charges 	. 	. 	.
and 	take 	such 	action 	and 	make 	such
determinations 	in 	respect 	of 	such 	charges 	or
6CSEA 	made 	no 	argument 	that 	unlawful 	changes 	in 	working
conditions 	made 	by 	the 	employer 	while 	the 	organization 	was 	a
nonexclusive 	representative 	could 	not 	adequately 	be 	remedied
following 	its 	selection 	as 	an 	exclusive 	representative. 	While
it 	is 	plausible 	that 	statute 	of 	limitation 	restrictions 	or
changes 	in 	the 	previous 	status 	quo 	could 	restrict 	the 	ability
of 	an 	exclusive 	representative 	to 	remedy 	prior 	wrongdoing,
these 	issues 	are 	not 	considered 	here.
7

alleged 	violations 	as 	the 	board 	deems
necessary 	to 	effectuate 	the 	policies 	of 	this
chapter.
Included 	within 	such 	discretion 	is 	the 	authority 	to 	determine
that 	issues 	are 	moot or 	that 	no 	remedy 	should 	be 	given or
administrative 	action 	taken 	upon 	a 	charge 	which 	otherwise
states 	a 	prima 	facie 	case. 	The 	authority 	for 	this 	discretion
is 	taken 	from 	a 	substantial 	history of 	similar 	authority 	in
other 	labor 	relations 	agencies 	such 	as 	the National 	Labor
Relations Board 	(hereafter 	NLRB). 	The 	NLRB 	and 	the 	courts 	have
consistently 	adhered 	to 	the 	principle 	that 	the 	agency 	is 	not 	a
court 	whose 	jurisdictions 	over 	violations 	must 	be 	exercised.
It 	is 	an 	administrative 	agency whose 	function 	is 	to 	adjudicate
public 	rights 	in 	a manner 	that 	will 	effectuate 	the 	policies 	of
the applicable Act. 	See Guss v. 	Utah, 	353 U.S. 	at 	13; 	NLRB v.
Denver 	Building Trades Council 	(1951) 	341 U.S. 	675, 	684
[28 	LRRM 2108] . 	Thus 	the NLRB has 	refused 	to exercise
jurisdiction 	or 	process 	unfair 	charges 	over 	many 	types 	of 	cases
where 	it 	could 	have 	granted 	a 	remedy. 	Additionally 	it 	has
found 	violations 	"de minimus" 	in 	cases 	where 	a prima 	facie 	case
was 	stated.
The 	Charging 	Party may 	obtain 	review 	of 	the 	dismissal 	by
filing 	an 	appeal 	to 	the 	Board 	itself 	within 	twenty 	(20)
calendar 	days 	after 	service 	of 	this 	notice. 	(PERB 	Regulation
32630(b).) 	Such 	appeal 	must 	be 	actually 	received 	by 	the
executive 	assistant 	to 	the 	Board 	before 	the 	close 	of 	business
Co	
8

(5:00 p.m.) 	on 	October 	27 	, 	1981 	in order 	to 	be 	timely
filed. 	(PERB 	Regulation 	32135.) 	Such 	appeal 	must 	be 	in
writing, 	signed 	by 	the 	party or 	his 	agent, 	and 	contain 	facts
and 	arguments 	upon which 	the 	appeal 	is 	based. 	(Section
32630(b).) 	The 	appeal 	must 	be 	accompanied 	by 	proof 	and 	service
and all parties 	(PERB Regulation 32135, 	32142, 	32630 (b)).
Dated: 	October 	7, 	1981 	William P. 	Smith
Chief 	Administrative 	Law 	Judge
By:
Terry 	Filliman
Hearing 	Officer
99