State of California (Department of Personnel Administration) (PERB 0585S)

STATE 	OF CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA 	STATE 	EMPLOYEES'
ASSOCIATION,
Charging 	Party,
v.
STATE OF 	CALIFORNIA, 	DEPARTMENT OF
PERSONNEL ADMINISTRATION,
Respondent.
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) 	Case 	No. 	S-CE-275-S
PERB 	Decision No. 	585-S
September 4, 	1986
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Appearance: 	Jeffrey Fine, 	Attorney 	for 	California 	State
Employees' Association.
Before Hesse, 	Chairperson; 	Morgenstern and Burt, 	Members.
DECISION
BURT, 	Member: 	This 	case 	is before 	the Public Employment
Relations 	Board on 	appeal by the 	California 	State 	Employees'
Association of 	the 	Board 	agent's partial 	dismissal, 	attached
hereto, 	of 	its 	charge alleging 	that 	the 	State of 	California,
Department 	of 	Personnel 	Administration, 	violated 	section
3519(a), 	(b) 	and 	(c) 	of the State Employer-Employee Relations
Act 	(Gov. 	Code, 	sec. 	3512 	et 	seq.).
We have 	reviewed 	the dismissal 	and, 	finding 	it 	free 	from
prejudicial 	error, 	adopt 	it as 	the Decision of 	the 	Board 	itself •
ORDER
This 	portion of 	the 	unfair practice 	charge 	in 	Case
No. 	S-CE-275-S 	is hereby 	DISMISSED WITHOUT LEAVE TO AMEND.
Chairperson 	Hesse 	and Member 	Morgenstern 	joined 	in 	this
Decision.

STATE Of CALIFORNIA 	GEORGE 	DEUKMEJIAN, Governor
PUBLIC EMPLOYMENT 	RELATIONS 	BOARD
SACRAMENTO REGIONAL OFFICE
1031 18TH STREET, SUITE 102
SACRAMENTO, CALIFORNIA 	95814
(916) 322-3198
March 	18. 	1986
Jeffrey Fine. 	Esq.
California 	State 	Employees 	Association
1108 	O Street. 	Suite 	327
Sacramento, 	CA 	95814
Re: 	California 	State Employees 	Association v. 	State 	of
California. 	Department 	of 	Personnel 	Administration
Unfair 	Practice 	Charge No. 	S-CE-275-S
The 	above-referenced 	charge 	alleges 	that 	the 	state 	of
California. 	Department 	of 	Personnel 	Administration 	(State)
failed 	to 	bargain 	in 	good 	faith with 	and 	refused 	to 	provide
relevant 	and 	necessary 	information 	to 	the 	California 	State
Employees Association 	(Association). 	This 	conduct 	is 	alleged
to violate sections 	3519(a). 	(b) 	and 	(c) 	of 	the State
Employer-Employee 	Relations 	Act 	(SEERA).
I 	indicated 	to 	you 	in my 	letter 	dated February 	20, 	1986 	that
allegations 	of 	surface 	bargaining 	contained 	in 	the 	charge 	did
not 	state 	a 	prima 	facie 	case, 	and 	that 	unless 	you 	amended 	these
allegations 	to 	state 	a 	prima 	facie 	case, 	or 	withdrew them prior
to February 	27. 	1986, 	they would 	be 	dismissed. 	More
specifically, 	I 	informed you 	that 	if 	there were 	any 	factual
inaccuracies 	or 	additional 	facts 	which would 	correct 	the
deficiencies 	explained 	in 	that 	letter, 	you 	should 	amend 	the
charge 	accordingly.
The 	deadline 	was 	extended 	and 	a 	first 	amended 	charge 	was 	filed
on March 	4, 	1986. 	The 	first 	amended 	charge 	differs 	only
slightly 	from 	the 	original 	charge. 	The 	first 	amended 	charge
essentially 	alleges 	that 	class 	size 	was 	discussed 	on 	June 	18
and 	28 	during 	which 	DPA 	made 	no 	movement 	from 	its 	previous
position. 	Personal 	alarms were 	discussed 	on June 	17 	with
statements 	by 	DPA 	that 	"appeared 	to 	be 	moving 	back 	from 	its
earlier 	statements." 	And 	finally, 	the 	amended 	charge 	alleges
that 	DPA was 	non-responsive 	during 	the 	mediation 	process,
failed 	to 	offer 	any 	equity 	adjustments 	for 	members 	of
bargaining 	unit 	three, 	and 	offered 	a 	cash 	out 	proposal 	for
educational 	leave 	for 	which 	the 	Association 	only 	had 	15 	minutes
to 	consider.
The 	offering 	of 	a 	proposal 	without 	allowing 	the 	other 	side
adequate 	time 	to 	consider 	it 	is 	evidence 	of 	bad 	faith. 	S 	& M
Manufacturing 	(1967) 	165 NLRB 	663; 	65 	LRRM 1350. 	However, 	such

Jeffrey Fine. 	Esq.
March 18, 	1986
Page 	2
conduct 	is 	not 	a 	"per 	se" 	violation and 	even when 	coupled 	with
the 	State's 	refusal 	to 	provide 	information 	does 	not 	constitute
a 	prima 	facie 	case 	of 	bad 	faith 	bargaining.
The 	remaining 	facts 	in 	the 	amended 	charge 	concern 	the 	State's
failure 	to 	compromise 	its 	positions 	on 	class 	size 	and 	inequity
adjustments. 	Adamant 	insistence 	on 	a 	bargaining 	position 	is
not 	necessarily 	a 	refusal 	to 	bargain 	in 	good 	faith. 	Oakland
Unified 	School District 	(1982) 	PERB Decision No. 	275. 	Nothing
in 	the 	charge 	establishes 	that 	the 	state's 	maintenance 	of 	its
positions 	on 	class 	size 	and 	inequity 	adjustments 	is 	evidence 	of
bad 	faith 	bargaining. 	In 	light 	of 	the 	fact 	that 	the 	parties
did 	reach agreement 	on a 	number 	of 	issues, 	there 	is
insufficient 	evidence 	in 	the 	totality 	of 	the 	State's 	conduct 	to
find 	a 	prima 	facie 	case 	of 	bad 	faith 	bargaining. 	For 	these
reasons, 	as well 	as 	those 	stated 	in the February 20, 	1986
letter 	(Exhibit 	1 ) , 	the 	allegations 	of 	surface 	bargaining 	are
dismissed.
Pursuant 	to 	Public 	Employment 	Relations 	Board 	regulation
section 	32635 	(California 	Administrative 	Code, 	title 	8,
part 	III), 	you may appeal 	the 	refusal 	to 	issue 	a 	complaint
(dismissal) 	to 	the Board 	itself.
Right 	to 	Appeal
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 	(section
32635(a)). 	To 	be 	timely filed, 	the 	original 	and 	five 	(5)
copies 	of 	such 	appeal 	must 	be 	actually 	received 	by 	the 	Board
itself 	before 	the 	close 	of 	business 	(5:00 	p.m.) 	on
April 	7, 	1986. 	or 	sent 	by 	telegraph 	or 	certified United 	States
mail 	postmarked 	not 	later 	than April 	7. 	1986 	(section 	32135).
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 	(5) 	copies 	of 	a 	statement 	in 	opposition within 	twenty
(20) 	calendar 	days 	following 	the 	date 	of 	service 	of 	the 	appeal
(section 32635(b)).

Jeffrey Fine. 	Esq.
March 18. 	1986
Page 3
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 	section 	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 	(section 	32132).
Final 	Date
If 	no 	appeal 	is 	filed within 	the 	specified 	time 	limits, 	the
dismissal 	will 	become 	final 	when 	the 	time 	limits 	have 	expired.
Very 	truly 	yours.
JEFFREY 	SLOAN
Acting 	General 	Counsel
By .
Robert 	Thompson
Regional 	Attorney
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STATE Of CALIFORNIA 	GEORGE DEUKMEJIAN. Governor
PUBLIC EMPLOYMENT 	RELATIONS BOARD
SACRAMENTO REGIONAL OFFICE
103) 18TH STREET, SUITE 102
SACRAMENTO. CALIFORNIA 	95814
(916) 322-3198
February 	20. 	1986
Jeffrey Fine. 	Esq.
California 	State 	Employees 	Association
1108 	O Street. 	Suite 	327
Sacramento, 	CA 	95814
Re: 	California 	State Employees 	Association v. 	State 	of
California. 	Department 	of 	Personnel 	Administration
Unfair 	Practice 	Charge 	No. 	S-CE-275-S
Dear Mr. 	Fine:
The 	above-referenced 	charge 	alleges 	that 	the 	State 	of
California. 	Department 	of 	Personnel 	Administration 	(State)
failed 	to 	bargain 	in 	good 	faith with 	and 	refused 	to 	provide
relevant 	and 	necessary 	information 	to 	the 	California 	State
Employees 	Association 	(Association). 	This 	conduct 	is 	alleged
to violate sections 	3519(a). 	(b) 	and 	(c) 	of 	the State
Employer-Employee 	Relations 	Act 	(SEERA).
The 	investigation 	of 	the 	charge 	revealed 	that 	the 	Association
is 	the 	exclusive 	representative 	of 	employees 	in 	State
bargaining unit 	number 	3. 	Education 	and 	Library. 	Beginning 	in
late 	1984 	the 	state 	and 	the 	Association 	entered 	into
negotiations 	for 	a 	new memorandum 	of 	understanding 	(MOU)
covering 	these 	employees 	to 	succeed 	an MOU 	which 	expired 	on
June 	30. 	1985. 	The 	parties 	continued 	to meet 	and 	reached 	an
agreement 	over 	a 	new MOU which 	took 	effect 	on 	July 	1. 	1985.
The 	charge 	specifies 	a 	number 	of 	factual 	events 	which 	occurred
during 	the 	fir6t 	six 	months 	of 	1985.
Based 	on 	the 	facts 	reviewed 	above, 	the 	allegation 	that 	the
State 	surfaced 	bargained 	with 	the 	Association 	does 	not 	state 	a
prima 	facie 	violation 	of 	the 	SEERA 	for 	the 	reasons 	which 	follow.
SEERA 	section 	3514.5(a) 	states 	in 	pertinent 	part:
Any 	employee, 	employee 	organization, 	or
employer 	shall 	have 	the 	right 	to 	file 	an
unfair 	practice 	charge, 	except 	that 	the
board 	shall 	not 	do 	either 	of 	the 	following:
(1) 	issue 	a 	complaint 	in 	respect 	of 	any
charge 	based 	upon 	an 	alleged 	unfair 	practice
occurring 	more 	than 	six 	months 	prior 	to 	the
filing of the charge; 	. 	. 	.
Exhibit 1

Jeffrey Fine. 	Esq.
February 20. 	1986
Page 	2
This 	charge was 	filed 	on December 	11. 	1985, 	which 	means 	the
earliest 	day of 	the 	statutory 	period 	was 	June 	11. 	1985. 	Almost
all 	of 	the 	circumstances 	described 	in 	the 	charge 	occurred 	prior
to 	June 	11 	and 	are 	thus 	outside 	the 	statutory 	period. 	Although
these 	facts 	may 	be 	considered 	evidence 	to 	support 	a 	finding
that 	Respondent's 	conduct 	after 	June 	11 	constitutes 	a 	violation
of 	SEERA, 	the 	charge 	does 	not 	specify 	conduct 	by 	the 	Respondent
after 	June 	11 	which would 	support 	the 	finding 	of 	a 	prima 	facie
case 	based 	on 	surface 	bargaining.1
For 	these 	reasons, 	the 	allegation 	that 	the 	State 	surface
bargained 	with 	the 	Association 	contained 	in 	charge 	number
S-CE-275-S. 	as 	presently written, 	does 	not 	state 	a 	prima 	facie
case. 	If 	you 	feel 	that 	there 	are 	any 	factual 	inaccuracies 	in
this 	letter 	or 	any 	additional 	facts 	which would 	correct 	the
deficiencies 	explained 	above, 	please 	amend 	the 	charge
accordingly. 	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 	be 	served 	on 	the 	respondent 	and
the 	original 	proof 	of 	service 	must 	be 	filed with PERB. 	If 	I 	do
not 	receive 	an 	amended 	charge 	or 	withdrawal 	from you 	before
February 27. 	1986, 	I 	shall 	dismiss 	the 	above-described
allegation 	from your 	charge. 	If 	you 	have 	any 	questions 	on 	how
to proceed, 	please 	call 	me 	at 	(916) 	322-3198.
Sincerely 	yours.
Robert 	Thompson
Regional 	Attorney
1 The 	following 	events 	are 	described 	in 	the 	charge 	as
occurring 	after 	June 	11: 	the 	State 	replied 	to 	the
Association's 	proposal 	concerning 	the 	2.5% 	service 	retirement
formula 	which 	had 	been 	presented 	to 	the 	State 	on March 	21; 	the
parties 	discussed 	class 	size 	and 	salary.
3956d