State of California (Department of Personnel Administration) (Association of California State Attorneys and Administrative Law Judges) (PERB 0823S)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT RELATIONS 	BOARD
ASSOCIATION 	OF 	CALIFORNIA 	STATE
ATTORNEYS 	AND ADMINISTRATIVE 	LAW
JUDGES,
Charging 	Party,
v.
STATE OF CALIFORNIA, 	DEPARTMENT
OF 	PERSONNEL ADMINISTRATION,
Respondent.
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) 	Case No. 	S-CE-410- S
PERB Decision No. 	323-S
June 29, 	1990
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Appearances: 	Ernest F. 	Schulzke, Attorney, 	for Association of
California 	State Attorneys 	and Administrative 	Law Judges;
Christopher W. 	Waddell, 	Chief Counsel, 	for the State of
California, 	Department of Personnel Administration.
Before Shank, 	Camilli and Cunningham, 	Members.
DECISION
CAMILLI, 	Member: 	This 	case is before the Public Employment
Relations 	Board 	(PERB or Board) 	on exceptions 	filed by the
Association of 	California 	State Attorneys 	and Administrative 	Law
Judges 	(ACSA) 	to a proposed decision 	(attached hereto) 	issued by
a 	PERB administrative 	law judge 	(ALJ). 	The ALJ held that the
State of California, 	Department of Personnel Administration
(DPA), 	did not violate section 3519(c) 	of the Ralph C. 	Dills Act
(Dills Act or Act) 	when 	it delayed making a definite 	salary
1Ralph C. 	Dills Act 	is 	codified at Government Code 	section
3512 	et 	seq. 	Unless 	otherwise 	indicated, 	all 	statutory
references 	herein are to the Government Code. 	Section 	3519
provides, 	in pertinent part:
It 	shall be unlawful 	for the 	state to:
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8823-S

proposal, 	or a 	firm response to ACSA's 	salary proposal until
August 	23, 	1988.2 Accordingly, 	ACSA's 	allegation that DPA failed
to 	bargain 	in good 	faith was 	dismissed.
(c) 	Refuse or 	fail 	to meet and confer 	in
good 	faith with 	a 	recognized 	employee
organization.
ACSA 	filed 	a 	variety of 	exceptions 	to 	the proposed decision
contending 	the ALJ 	erred 	in making 	numerous 	findings 	of 	fact,
procedural 	findings, 	and several 	legal conclusions.
We 	have 	carefully reviewed the 	entire 	record, 	including the
proposed decision, 	transcript, 	exceptions and responses, 	and,
finding 	the ALJ's 	findings 	of 	fact 	and conclusions 	of 	law to 	be
substantially 	free 	of prejudicial 	error, 	we adopt the ALJ's
proposed decision as 	the decision of 	the Board 	itself, 	insofar as
it 	is 	consistent with the 	factual 	summary and discussion below.
FACTUAL 	SUMMARY
ACSA 	is 	the 	exclusive 	representative 	for 	state 	employees
in Bargaining Unit No. 	2 	comprised of 	state attorneys 	and
administrative 	law 	judges. 	DPA is 	the 	state employer's
representative 	for purposes 	of 	bargaining and 	contract
administration under the 	Dills Act.
Early 	in 	1988, 	the Governor delivered his 	budget to 	the
Legislature 	for fiscal year 	1988-89. 	This proposal 	contained a
4-percent 	increase 	for 	state 	employee 	salaries 	to 	be 	effective
January 	1989. 	The proposal, 	however, 	was not a bargained-for
2Unless 	otherwise 	indicated all dates 	refer to 	1988
22

contract with 	state employees, 	but rather, 	the opening round in
the 	development 	of 	the 	state budget with the Legislature.
Negotiations 	between ACSA 	and 	DPA under 	the 	Dills 	Act
commenced 	on March 	31 	with ACSA presenting 	its 	initial 	proposal
to DPA. 	The proposal was 	made 	in general 	terms 	and asked 	for
"increased 	salaries 	and 	compensation," 	with 	no percentage 	stated.
DPA presented 	its 	initial 	response on April 	14, 	indicating 	it was
willing 	to 	negotiate 	salaries.
Negotiations 	began in earnest on May 	17, 	when ACSA made 	a
detailed proposal 	to 	DPA which 	included 	a 	specific 	salary
proposal. 	At the next bargaining session, 	on May 31, 	DPA made a
detailed 	counterproposal. 	Although 	the 	counterproposal 	contained
specific 	responses 	to much of ACSA's proposal, 	it did not 	contain
a 	specific 	counterproposal 	on 	salary. 	Rather, 	DPA's 	response was
that 	it would make a 	"proposal 	later" 	on the 	salary range
increase.3 When questioned 	about when DPA would move 	on 	salary,
DPA's representative, Michael Canar 	(Canar), 	replied, 	"[After he
had 	an opportunity to] 	see how the budget 	came out."
Additional 	negotiation 	sessions were held on June 	14,
June 28, 	July 	12, 	August 8 and 23. 	Detailed proposals were
exchanged on numerous 	items 	at 	each of 	these 	sessions 	and
movement 	toward a 	final 	agreement was 	made 	on various 	subjects.
3ACSA 	excepts 	to 	the ALJ's 	finding that 	"proposal 	later"
indicates 	on its 	face the 	intent to bargain. 	While we agree 	an
intent 	to 	bargain may not 	always 	be 	reflected 	from 	the 	use 	of
this phrase, 	we do not agree with ACSA's 	argument 	that 	its 	use
constitutes 	"a 	refusal 	to bargain within the time prescribed by
section 3517."
w	3

With the 	exception of the August 	23 	bargaining 	session, 	DPA
continued to 	include 	in each of 	its 	counterproposals 	to ACSA's
salary 	item the 	language 	"proposal 	later." 	Canar testified 	this
language was 	used 	in the 	salary discussions 	because 	he 	did 	not
want 	to 	reject 	out-of-hand ACSA's 	proposal when he 	had 	little
information on the 	state's 	fiscal 	condition until 	after the 	final
budget was 	signed.
The 	Legislature passed the 	state budget on June 	30 	and the
Governor 	signed 	it 	into 	law on July 	8. 	At 	the next 	regularly
scheduled bargaining 	session, 	on July 	12, 	ACSA inquired as 	to
whether 	DPA would make 	a 	firm 	salary offer. 	Canar 	replied 	that
he 	had 	authority 	to 	offer 	only 	a 	2-percent 	increase 	and 	inquired
whether ACSA was 	interested 	in 	such an offer. 	Although ACSA
disputes 	this 	inquiry 	constituted 	a 	valid proposal 	under the
bargaining ground rules, 	the evidence 	supports 	the ALJ's 	finding
that 	the 	2-percent 	"offer" 	was 	rejected by ACSA.4 Canar
testified 	DPA's 	salary proposal 	was 	limited 	to 	2-percent 	because
it was 	unclear how much above 	that 	figure would be 	available 	for
further 	negotiations 	until 	after he 	had 	an opportunity 	to 	review
the budget 	in detail.
4We 	find 	sufficient 	evidence 	in the 	record to 	support 	the
ALJ's 	finding 	that ACSA did 	not wish 	to 	consider 	a 	2-percent
proposal 	and, 	therefore, 	declined to commence negotiations 	at
that 	figure. 	(Santa Clara 	Unified School 	District 	(1979) 	PERB
Decision No. 	104.) 	Further, 	the 	fact ACSA viewed Canar's
statement as 	a 	"casual 	comment" 	does 	not preclude ACSA 	from at
least 	considering 	it 	as 	a 	starting point 	for more 	substantive
negotiations 	leading to a 	substantive 	counterproposal by DPA, 	and
so on.
44

At the next bargaining session, 	on August 	8, 	ACSA
significantly 	changed 	its 	position 	and proposed 	a 	3-year
agreement.5 On August 23, 	DPA made 	its 	first detailed written
counterproposal 	on salary, 	offering ACSA 	6-percent, 	4-percent,
and 	4-percent 	increases 	over 	a 	3-year 	contract. 	Subsequent
negotiating 	sessions were held on September 20, 	October 4, 	20,
and 	26-28 	in which 	the parties 	continued to 	negotiate 	on numerous
issues6 including 	salary. 	A tentative 	agreement was 	reached
October 28, 	and the contract was 	signed November 7, 	1988. 	The
salary proposal 	agreed to 	in that 	contract was 	the 	same 	as 	the
offer made by DPA on August 	23.
This 	case 	originally 	came before 	the 	Board on an appeal 	of 	a
Board 	agent's 	decision dismissing ACSA's 	complaint. 	The 	Board,
however, 	in State of California 	(Department of Personnel
Administration) 	(1989) 	PERB Decision No. 	739-S 	(herein ACSA II)
5ACSA excepts 	to 	this 	finding by the ALJ and argues 	the
initiative 	for 	the proposal 	came 	from ACSA's 	observation that
other 	employee 	organizations 	were 	reaching 	agreements 	on 	3-year
contracts. 	Thus, 	ACSA viewed the 	3-year contract proposal 	as 	a
means 	of 	motivating DPA to make 	a 	firm 	salary offer.
In our view, 	however, 	the origination of the proposal 	is
irrelevant. 	The 	fact that ACSA 	"noticed" 	other bargaining units
were 	reaching 	agreements 	on 	3-year 	contracts 	does 	not 	indicate
DPA was 	bargaining 	in bad 	faith. 	Such proposals, 	made by either
side, 	are legitimate bargaining strategies. 	In this case, 	ACSA
expressed 	its 	interest 	in obtaining 	a 	contract 	extending 	over
three years. 	DPA 	similarly was 	receptive to 	such a 	contract.
Accordingly, 	there 	is no evidence that the ALJ's 	finding is
incorrect.
6We 	find 	sufficient 	evidence 	in the 	record to 	support 	the
ALJ's 	finding that the parties 	negotiated and, 	in some 	instances,
reached 	agreement 	on a variety 	of 	subjects 	other 	than 	salary.
(See discussion, 	infra.)
55

reversed 	that 	decision 	and 	remanded ACSA's 	complaint 	for 	hearing.
The 	instant 	case 	is 	an appeal 	of 	an ALJ's 	proposed decision
concerning 	that 	hearing.
DISCUSSION
ACSA's 	allegation of 	bad 	faith bargaining 	is 	based 	on two
theories: 	(1) 	that DPA's 	delay 	in making a 	firm 	salary proposal
until August 	23 	is 	a per 	se violation of 	its duty to bargain 	in
good 	faith;7 and 	(2) 	alternatively, 	under the totality of the
circumstances, 	the delay 	indicates 	DPA lacked 	the 	subjective
intent 	to 	reach an agreement.
Per Se Analysis
Ordinarily 	"per 	se" 	violations 	occur where 	the 	"bargaining
conduct 	[is] 	so obstructive of the negotiating process" 	that 	it
undermines 	the 	bargaining 	agent's 	ability 	to 	reach 	an 	agreement.
(State 	of 	California 	(Department 	of 	Personnel 	Administration)
(1986) PERB Decision No. 	569-S, p. 	11 	(herein ACSA I ) : 	Pajaro
Valley Unified School District 	(1978) 	PERB Decision No. 	51,
pp. 	4-6; 	Lake Elsinore School District 	(1986) 	PERB Decision
No. 	603; 	see generally, 	Morris, 	The Developing Labor Law, 	(2d ed.
1983) 	pp. 	562-570.) 	In this case, 	however, ACSA contends a per
7We do 	not 	adopt 	footnote 	5 	of 	the ALJ's proposed decision
interpreting our decision in ACSA II. 	As 	noted above, 	in ACSA
II, 	we reversed the ALJ's dismissal 	of ACSA's 	complaint and
remanded this 	case 	for hearing. 	In determining whether DPA
violated 	section 3519(c), 	the ALJ interpreted ACSA II 	as
directing her to 	apply the 	"totality of 	conduct" 	as 	opposed 	to
the 	"per se" 	test. 	However, 	while we could have decided, 	when
this 	case was before us 	on a dismissal, 	whether the per se test
was 	appropriate, 	we declined to do 	so and merely decided 	that 	the
case as plead was 	sufficient to go to hearing.
-
66

se 	violation occurred because 	DPA did 	not meet 	its 	statutory
obligation under 	section 35178 of the Act to make a 	firm 	salary-
offer prior to adoption of 	the 	final budget.9
A 	similar 	issue was 	decided by the 	PERB 	in ACSA 	I. 	In that
decision the Board reviewed, 	in part, 	DPA's bargaining obligation
under 	section 	3517 	to determine whether that 	section, 	in
conjunction with Article IV, 	section 	12(c) 	of the California
8 Section 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 	the 	adoption by-the 	state of 	its 	final budget 	for the 	ensuing
year. 	The process 	should include adequate
time 	for the resolution of 	impasses.
(Emphasis 	added.)
9The parties 	do 	not dispute 	that 	DPA 	failed to make 	a
detailed 	or 	firm counterproposal 	to ACSA's 	salary proposal 	until
nearly two months 	after 	final 	adoption of 	the 	state budget.
'
7

Constitution10 required 	DPA to 	make 	a 	firm 	salary proposal 	prior
to June 	15, 	the date the Legislature 	is 	required to pass 	the
budget. 	In ACSA I, 	the budget was 	not passed by the Legislature
until July 	19, 	1986, 	nor 	signed by the Governor until July 	21,
1986. 	However, 	on June 30, 	1986, 	DPA, 	"[b]elieving that
continued 	negotiations 	with 	the 	Legislature would 	not 	be
forthcoming 	. 	. 	. 	made its proposal 	[to ACSA] 	concerning economic
offers." 	(ACSA I. 	p. 	4.) 	ACSA points out that, 	in ACSA I. 	DPA
took the position that 	"so 	long as 	the parties 	exchange 	[firm]
proposals prior to 	final 	adoption of 	the 	state budget, 	whenever
that 	occurs, 	the good faith negotiating 	standard has 	been met."
(ACSA I. 	p. 	6; 	emphasis added.) 	ACSA then emphasizes that, 	in
the 	instant 	case, 	DPA did not make 	a 	firm 	salary proposal 	until
after the Governor 	signed the budget. 	Thus, 	ACSA contends,
10Section 	12(c) 	of the California Constitution reads
The budget 	shall 	be 	accompanied by a budget
bill 	itemizing recommended 	expenditures. 	The
bill 	shall 	be 	introduced 	immediately 	in each
house by 	the persons 	chairing 	the 	committees
that 	consider appropriations. 	The
Legislature 	shall pass 	the budget bill 	by
midnight of June 	15 	of each year. 	Until the
budget bill has 	been enacted, 	the Legislature
shall 	not 	send to 	the Governor 	for
consideration any bill 	appropriating 	funds
for 	expenditure during the 	fiscal 	year 	for
which the budget bill 	is 	to be 	enacted,
except 	emergency bills 	recommended by 	the
Governor or appropriations 	for the 	salaries
and expenses 	of the Legislature.
8

ACSA I 	does 	not 	control 	the 	resolution of 	this 	case 	and asserts
such a delay constitutes a refusal to bargain and, 	therefore, 	a
per 	se violation of the Act.11
While ACSA correctly distinguishes 	the 	facts 	in ACSA 	I 	from
the 	instant 	case, 	we nevertheless 	find the 	rationale 	supporting
our decision in ACSA I persuasive in deciding this 	case. 	In the
present 	case, 	ACSA again attempts 	to 	link the negotiation process
to 	the timeliness 	imposed 	for adoption of the 	state budget. 	The
Board, 	however, 	has previously recognized that the 	state's
11ACSA also 	excepts 	to the ALJ's 	analysis 	of 	the 	Board's
holding 	in ACSA II. 	Specifically, 	ACSA argues 	the ALJ misstates
the Board's 	analysis 	in ACSA II 	interpreting ACSA 	I 	as 	follows:
"The 	Board 	[in ACSA 	III 	noted 	that 	a refusal 	to 	negotiate
salaries 	prior to adoption of 	the budget was 	'not always 	a per 	se
refusal 	to bargain.'" 	(Emphasis 	added.) 	We agree that the ALJ's
characterization of our holding is 	inaccurate and, 	therefore, 	do
not 	adopt that portion of her analysis. 	What 	the 	Board 	stated 	in
ACSA II was:
In 	[ACSA I], the Board, 	in a narrowly drawn
decision, 	held that, 	although the 	state was
under an obligation pursuant 	to 	section 	3517
of 	the Act 	"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," 	a 	failure
to 	negotiate 	salaries 	prior to 	the date 	the
Legislature must pass 	the 	budget was 	not
always 	a per se refusal to bargain.
(Emphasis 	added.)
Read in context, 	the phrase 	"prior to the date 	the Legislature
must pass the budget" 	refers to June 	15. 	Thus, 	ACSA I 	addressed
facts 	in which the proposal was 	made after June 	15 	but before the
budget was 	in fact passed by the Legislature. 	On those 	facts 	it
was 	determined that 	the delay was 	not 	always 	a per 	se 	refusal 	to
bargain.
Also for the reasons 	stated above, 	we do not adopt the ALJ's
conclusion that 	"In 	[ACSA 	11 	PERB held that 	the 	employer's
refusal 	to make a monetary offer until 	the budget was 	finalized
was 	not a per 	se violation". 	(Emphasis 	added.)
99

obligation to meet 	and 	confer 	in good 	faith 	does 	not bind 	the
collective bargaining process 	to the budget. 	(State of
California 	(Department of Personnel Administration) 	(1988) 	PERB
Decision No. 	706-S.) 	Moreover, 	section 3517 merely establishes
the budget as 	a 	"point of reference" 	and not a 	statutory deadline
for negotiations. 	(ACSA I, 	p. 	7) 	Accordingly, 	in ACSA I we
held:
. 	. 	. 	the language of section 3517 imposing
an obligation 	"to endeavor" 	exhorts 	the
parties 	to attempt 	or to 	strive 	in earnest 	to
attain a certain end. 	Thus, 	the 	statutory
mandate 	is 	violated where 	either party's
conduct 	fails 	to demonstrate 	such effort.
However, 	the 	statutorily 	imposed obligation
"to endeavor" 	can by no means 	be 	interpreted
to 	create 	an absolute 	standard pursuant 	to
which a 	failure 	to present proposals 	by June
15 must be 	judged a per 	se violation.
In 	sum, 	SEERA's 	statutory provisions 	do not
specifically mandate 	that 	negotiations 	with
the 	employee 	organization must precede 	or
follow final 	legislative 	action.
(ACSA I. 	pp. 	8-12; 	emphasis added.)
Although the 	"uncertain financial picture" 	in ACSA 	I 	in part
justified 	DPA's 	"postponing the 	inception of 	negotiations," 	that
picture may not become 	clear until 	after 	final 	adoption of 	the
budget. 	Consequently, 	it is 	not necessarily inappropriate 	for
the Governor's representative, 	as 	a part of his bargaining
strategy, 	to delay making a 	firm proposal until he has 	had an
opportunity to 	review the 	final 	budget 	in good 	faith 	in order 	to
determine 	the 	funds 	potentially available 	for 	salary 	increases.
10

ACSA also 	argues 	support 	for 	finding a per 	se violation 	is
found in Cumero v. 	Public 	Employment Relations 	Board 	(1989) 	49
Cal.3d 575. 	According to ACSA, 	the California Supreme Court, 	in
commenting on 	lobbying activities 	under the 	Dills Act, 	recognized
that 	the 	legislature 	intended 	and 	expected 	state 	employees 	would
lobby 	the 	legislature 	after meeting 	and 	conferring with 	the
governor's 	representative. 	ACSA contends 	these 	observations 	by
the 	court 	in Cumero 	further demonstrate 	that DPA's 	refusal 	to
bargain until 	after 	the 	Legislature has 	acted 	frustrates 	the
intent of the Act, 	subverts the bargaining process, 	and renders
subsequent 	negotiations 	virtually meaningless.
ACSA's 	interpretation of Cumero. 	supra. 	is rejected. 	We do
not 	agree 	that 	DPA's 	delay 	in making a 	firm proposal prevents
ACSA 	from 	lobbying 	the 	legislature while 	simultaneously
negotiating with the 	governor's 	representative. 	ACSA's 	freedom
to 	engage 	in lobbying efforts 	designed to 	influence 	the 	amount 	of
money designated 	in the budget 	for 	salary 	increases, 	or any other
purpose, 	is 	simply not 	impaired by a delayed 	salary proposal.12
12DPA's 	argument that 	the 	lobbying referred to 	in the Act 	is
limited 	to 	ratification of 	the 	memorandum of 	understanding 	(MOU)
is also rejected. 	Nothing in Cumero. 	supra, 	or the Act 	itself
warrants 	such a narrow interpretation. 	Moreover, 	the California
Court of Appeal, 	in Lillebo v. 	Davis 	(1990) 	218 Cal.App.3d 	1588,
while 	commenting on Cumero. 	and whether 	service 	fees 	could be
collected 	from nonunion members, 	recognized the 	"union's 	broader
right 	to 	represent 	its 	members 	in employment relations 	with 	the
state 	[citation], 	including not only the executive branch but
also the 	legislative." 	(Emphasis 	in original.) 	Accordingly, 	the
court held 	that 	the 	collection of 	such 	fees 	is 	appropriate 	since
the 	exclusive 	representative 	lobbies 	the 	Legislature 	for 	improved
working 	conditions 	"in addition 	to 	those 	secured through meeting
and 	conferring with the 	state 	employer." 	(A petition 	for review
was 	filed with 	the 	California 	Supreme 	Court by the 	appellant,
.. . .
11

Lillebo, 	on May 1, 	1990.)
Accordingly, 	DPA's 	delay 	in making a 	firm 	salary proposal
does 	not 	constitute 	conduct 	so 	obstructive of 	the 	negotiating
process 	that 	it undermined the parties 	ability to 	reach 	an
agreement. 	Further, 	we agree with the ALJ that, 	in this 	case,
DPA's conduct indicates 	caution, 	not contempt, 	for the
negotiating process and, 	therefore, 	reject the application of the
per se test to these facts.
Totality 	of 	Conduct Analysis
While 	it 	is 	not a per 	se violation to delay making a 	firm
salary proposal until after final 	adoption of the budget, 	a
violation may nevertheless 	occur 	if 	negotiations 	are 	conducted 	in
such a manner that, 	based on the totality of conduct, 	it 	is
apparent 	DPA 	lacked 	the 	subjective 	intent 	to 	reach 	an agreement.
(Oakland Unified School District 	(1982) 	PERB Decision No. 	275;
Fremont Unified School District 	(1980) 	PERB Decision No. 	136.)
Here, 	however, 	DPA's delay until August 23 	in making a firm
salary proposal does not, 	by itself, 	indicate 	such an intent.
Moreover, 	we 	find that the 	totality of 	the 	conduct 	of 	the parties
evidences 	"an endeavor to reach agreement" 	consistent with 	our
interpretation in ACSA I 	of 	section 3517 	of 	the Act. 	Ground
rules were agreed upon promptly, 	negotiations were 	scheduled 	and
regularly held, 	counterproposals were presented 	at bargaining
sessions, 	and the parties 	reached tentative 	agreements 	on 	several
issues 	at various points 	in the bargaining process. 	The record
also 	establishes 	that 	contract 	extensions 	were 	granted 	to ACSA 	in
12

order to 	keep 	the MOU 	in place 	during negotiations 	and 	the 	state
agreed to 	increase health benefit 	contributions 	to 	Unit 	2 	members
during the 	course 	of negotiations 	in order that 	employees 	could
avoid paying the 	increases out-of-pocket. 	Accordingly, 	we 	agree
with the ALJ's 	analysis 	that, 	under the totality of
circumstances, 	DPA bargained with the 	intent to reach 	an
agreement.
Based upon the 	foregoing analysis, 	we 	affirm the ALJ's
dismissal of a violation of 	section 3517(c) 	of the Act and, 	in
accord with 	our decision 	in Los 	Angeles 	Unified 	School 	District
(1982) 	PERB Decision No. 	218, 	we also dismiss the 	(a) 	and 	(b)
violations 	which were 	alleged 	derivatively.
ORDER
The 	complaint 	in Case No. 	S-CE-410-S 	is hereby DISMISSED.
Members 	Shank and Cunningham 	joined 	in this 	Decision.
13

STATE 	OF 	CALIFORNIA
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
ASSOCIATION OF 	CALIFORNIA 	STATE
ATTORNEYS 	AND ADMINISTRATIVE 	LAW
JUDGES 	(ACSA),
Charging 	Party,
v.
STATE OF CALIFORNIA, 	DEPARTMENT
OF PERSONNEL ADMINISTRATION 	(DPA),
Respondent.
)
)
)
)
) 	Unfair Practice
Case No. 	S-CE-410-S
PROPOSED DECISION
(1/11/90)
)
)
)
)
)
)
)
Appearances: 	Ernest F. 	Schulzke, 	Attorney, 	for the Association
of 	California 	State Attorneys 	and Administrative 	Law Judges;
Christopher W. 	Waddell, 	Chief Counsel, 	for the Department of
Personnel 	Administration.
Before Martha Geiger, 	Administrative Law Judge.
PROCEDURAL 	BACKGROUND
The 	charge 	in this 	case was 	filed by the Association of
California 	State Attorneys 	and Administrative 	Law Judges 	(ACSA)
against the State of California, 	Department of Personnel
Administration 	(DPA) 	on October 3, 	1988. 	ACSA alleged that DPA
violated section 3519(a), 	(b) 	and 	(c) 	of the Dills Act1 by
1 T h e 	Dills Act 	is 	codified at Government 	Code 	section 	3512
et seq. 	Section 3519(a), 	(b) 	and 	(c) 	read in relevant part:
3519. 	ILLEGAL ACTS OR CONDUCT OF 	STATE
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.
This proposed decision has been appealed to the
Board itself and may not be cited as precedent
unless the decision and its rationale have been
adopted by the Board.
,;I
___________________ )

refusing to make a definite 	salary proposal, 	or a 	firm response
to ACSA's 	salary proposal, 	until 	five months 	after ACSA's 	initial
proposal, 	three months 	after ACSA had made 	its 	detailed 	salary
proposal 	to DPA, 	and nearly two months 	after the adoption of 	the
State budget by the Legislature. 	Based on the 	allegations 	in the
charge, 	the Office of the General Counsel of the Public
Employment 	Relations 	Board 	(PERB or Board) 	issued a 	complaint
against 	DPA, 	alleging that 	DPA's 	conduct violated 	section
3519(0), 	and derivatively 	(a) 	and 	(b) 	of the Dills Act. 	After a
timely answer was 	filed by DPA, 	a 	settlement conference was
scheduled before PERB. 	The matter not being resolved, 	a 	formal
hearing was 	scheduled.
(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.
Prior to the hearing, 	however, 	DPA moved to dismiss 	the
charge 	and 	complaint 	on the ground that 	no prima 	facie 	case 	of
bad 	faith bargaining had been 	stated. 	The 	administrative 	law
judge 	(ALJ) 	analyzed the actions 	of DPA as 	alleged and held 	that,
even if the facts as 	alleged were true, 	DPA's behavior at the
table 	constituted neither a per 	se violation of 	the duty to
bargain 	in good 	faith, 	nor a violation using the 	"totality of
circumstances" 	test. 	Thus, 	he dismissed the charge and
complaint.
22

ACSA appealed the dismissal 	to 	the 	Board 	itself. 	On June 	8,
1989, 	the 	Board reversed the ALJ's 	dismissal 	and ordered the
matter 	set 	for hearing. 	In its decision, 	the Board touched only
briefly on the two types 	of 	violations. 	The Board noted that a
refusal 	to negotiate 	salaries 	prior to 	adoption of 	the budget was
"not always 	a per se refusal to bargain." 	In 	spite of 	this
language 	the 	Board nonetheless 	remanded 	this 	case 	for hearing
because 	"the 	allegations 	are 	sufficient 	to 	state 	a prima 	facie
case. 	. . . " 	The ALJ's 	analysis 	of whether the 	facts 	as 	alleged
could violate 	the 	"totality of 	the 	circumstances" 	test was 	not
addressed.
Pursuant to the Board's decision, 	this 	case was again set
for a 	formal 	hearing before 	the undersigned, 	and was 	held on
September 	19, 	1989. 	The parties briefed the issues 	at the close
of 	the hearing, 	and the matter was 	submitted on December 	15,
1989. 	This decision is based on the entire record of 	this 	case,
including 	the 	testimony 	and 	evidence 	submitted at 	the 	formal
hearing.
FINDINGS 	OF 	FACT
ACSA 	is 	the 	exclusive representative 	for State 	employees 	in
Bargaining Unit Number 2. 	DPA is 	the State 	employer's
representative 	for purposes 	of 	bargaining 	and 	contract
administration under the 	Dills Act.
Early 	in 	1988, 	the Governor delivered his budget proposal 	to
the Legislature 	for the 	fiscal year 	1988-89. 	This proposal
contained 	a 	four percent 	increase 	for State 	employee 	salaries 	in
33

January 	1989. 	This proposal by the Governor, 	however, 	was not a
bargained-for 	contract with State 	employees. 	It was 	merely the
opening gambit 	in the extensive budget process.2
The 	State Constitution requires 	that a budget bill 	shall 	be
passed by the 	Legislature by midnight on June 	15 	each year. 	The
Governor may sign, 	veto, 	or 	(most commonly) 	line-item veto the
bill passed by the Legislature. 	Until 	the budget bill 	is
actually signed by the Governor, 	however, 	the total amount of
money in the budget 	is 	not known.
After the budget has 	been 	signed, 	DPA and the various 	unions
representing 	State 	employees 	typically meet 	and 	negotiate 	in
earnest 	subjects 	of 	bargaining with 	fiscal 	implications 	(salaries
and benefits). 	Thus, while negotiations begin in the spring,
non-monetary 	items 	are 	likely to be agreed upon first, 	and
monetary 	items 	after the budget bill 	is 	signed.
In this 	case, 	ACSA made 	its 	initial proposal to DPA on March
31, 	1988. 	The proposal made was general 	in nature and asked 	for
only 	"increased 	salaries 	and 	compensation," 	with no percentage
stated. 	DPA presented 	its 	initial 	response on April 	14,
indicating 	it was willing to negotiate 	salaries.3
2 In a prior case before 	PERB, 	ACSA had alleged that 	DPA's
failure 	to bargain with ACSA prior 	to 	the 	legislative passage 	of
the budget on June 	15 	of 	each year was 	a per 	se refusal 	to
bargain in good faith. 	PERB, 	however, 	rejected this argument.
3 These two proposals 	are 	colloquially called the 	"sunshine"
proposals 	and are made 	to 	conform to 	section 	3523 	of 	the 	Dills
Act.
4

Negotiations 	began in earnest 	on May 	17 when ACSA made 	a
detailed proposal 	to DPA, 	including a 	specific 	salary proposal.
At the next negotiating 	session, 	on May 31, 	DPA made a detailed
counter-proposal. 	The counter-proposal, 	although it made
specific 	counter-proposal 	language 	to much of ACSA's 	proposal,
did not 	contain a 	specific 	counter-proposal 	on 	salary. 	Rather,
DPA's 	offer was 	that 	it would make a 	"proposal 	later" 	on the
Salary Range 	Increase. 	At the table, 	DPA's 	representative was
Michael 	Canar. 	When queried about when DPA would move on 	salary,
Canar 	said 	"after the budget 	came down."
Negotiation 	sessions 	continued to be held. 	The parties 	met
on June 	14, 	June 28, 	July 	12 and August 8. 	At each of these
sessions, 	detailed proposals were exchanged on various 	items.
With 	each counter-proposal, 	movement 	toward a 	final 	agreement was
reached on various 	subjects. 	In each DPA proposal, 	however, 	the
Salary Range 	Increase 	item was 	noted with the 	same 	"proposal
later" 	language.
On July 8, 	1988, 	the Governor signed the final budget. 	At
the 	July 	12 	bargaining 	session, 	ACSA 	inquired whether DPA would
now make 	a 	salary offer. 	Canar told the ACSA bargaining team
that he had the 	authority at 	that point 	only to offer a 	two
percent 	increase, 	and asked whether ACSA was 	interested 	in a 	two
percent offer. 	The members 	of the team 	shook their heads 	to
indicate, 	no, 	they were not interested in a two percent proposal.
Canar 	testified that 	the 	State 	used 	the 	language 	"proposal
later" 	in the 	salary discussions 	because he did not want 	to
un	5

reject out-of-hand ACSA's proposal when he, 	Canar, 	had little
information on the 	State's 	fiscal 	condition until 	after the 	final
budget was 	signed. 	Only after July 	8 	did the picture begin to
clear. 	At that point, 	Canar knew the State 	could offer a minimum
of 	a two percent 	increase, 	but he did not know how much more he
would have to offer. 	Hence, 	he asked ACSA whether they wanted a
two percent offer, 	the 	implication being that a 	larger offer
would 	come 	a 	little 	later when 	DPA 	fully understood 	its 	fiscal
condition after analyzing the budget bill. 	ACSA, 	by 	indicating
it did not want a two percent offer, 	chose to wait until Canar
said 	DPA would have 	full 	authority 	to 	negotiate 	salary.
On August 	8, 	the parties 	again met. 	ACSA significantly
changed 	its position to propose a 	three-year agreement. 	On
August 	23, 	DPA made 	its 	first counter-proposal 	on salary,
offering ACSA 	six, 	four and 	four percent 	over a three-year
contract.
The parties 	continued to 	negotiate 	on all 	issues 	(including
salary). 	Sessions were held September 20, 	October 4, 	October 20,
October 26, 	27 	and 28. 	Tentative agreement was reached October
28, 	and the contract was 	signed November 7, 	1988. 	The salary
proposal 	in that 	contract was 	the 	offer made by DPA on August 	23.
ISSUE
Did the 	failure 	of 	DPA to make a 	specific 	salary proposal
until August 23, 	1988, 	constitute bad faith bargaining, 	and thus
violate 	section 	3519(c)?
6
6

CONCLUSIONS 	OF 	LAW
As 	noted by 	the ALJ who 	ruled 	on the 	original 	Motion to
Dismiss, 	bad 	faith bargaining can be 	evidenced either by an act
that 	is 	a per se violation, 	or by actions that, 	in the totality
of 	circumstances, 	indicate a party lacks 	the requisite 	intent to
reach an agreement.
The 	Charging Party has 	focused on the 	failure 	of 	DPA 	to 	make
a 	specific 	salary proposal 	until August 	23 	and argues 	that 	this
action constitutes 	a per 	se violation of 	the duty to bargain.4
In State of California 	(DPA) 	(1986) 	PERB Decision No. 	569-S
(hereinafter DPA(ACSA) 	I ) , 	PERB held that the employer's refusal
to make 	a monetary offer until 	the budget was 	finalized was 	not 	a
per se violation. 	Thus, 	DPA's actions until July 8 when the bill
was 	signed are not per 	se bad 	faith bargaining. 	Left unanswered
by the Board 	itself 	in its 	order remanding this 	decision 	is
whether DPA's 	refusal to make a 	salary offer between July 	8 	and
August 	23 	is 	a per se violation.
Analysis of the case law and facts, 	however, 	presents
convincing 	evidence there was 	no per 	se violation at 	any time
here. 	A per se violation is one which, 	by its very nature, 	so
destroys 	or avoids 	the bargaining process 	that the 	negotiations
are rendered meaningless. 	An employer who makes 	a unilateral
change without bargaining has 	deprived the union of 	any
4 For example, 	a per se violation will be found, 	regardless
of the motive behind the act, 	when a party makes 	a unilateral
change 	in the 	terms 	and conditions 	of 	employment prior to
bargaining to 	impasse. 	(Grant Joint 	Union High 	School 	District
(1982) PERB Decision No. 	196).
: .. .
77

participation 	in negotiating about that 	subject, 	and has 	changed
the union from a participant 	in the process 	to a mere recorder of
the employer's 	action. 	Is 	the 	failure of DPA to put 	forth a 	firm
salary proposal 	between July 	8 	and August 	23 	akin to this 	type 	of
disruptive action? 	No.
Here, 	the parties 	continued to meet and negotiate on many of
the 	issues 	still 	"on the table". 	DPA took no action on salaries
that 	would preclude ACSA 	from 	having 	any 	meaningful 	negotiations.
Indeed, 	DPA's 	entire posture was 	one of 	conciliation because,
rather than offer nothing, 	it delayed offering anything. 	Such
behavior indicates 	caution, 	not contempt, 	for the negotiating
process. 	Thus 	the action of 	DPA cannot reasonably be 	seen to be
a per se violation of section 3519(c).5
This determination, 	however, 	answers only part of the
question. 	ACSA can 	still prove that DPA bargained 	in bad 	faith
if 	it can show that, 	under the totality of the circumstances, 	it
was 	apparent 	that 	DPA 	lacked 	the 	subjective 	intent 	to 	reach 	an
agreement. 	DPA(ACSA-----·) 	I. 	supra--. 	Presumably, 	such an analysis of
the 	facts 	is what 	the Board 	itself 	referred to 	in 	its 	order
5 Support 	for this 	finding 	is 	found 	in the 	lack of
instruction to 	the ALJ 	in the 	remand order. 	If 	the 	Board 	itself
had meant 	to 	find that 	DPA's 	then-alleged behavior 	could have
constituted a per 	se violation, 	then the 	sole purpose 	for remand
would be 	to determine the bare 	facts 	of whether the 	salary
proposal was, 	indeed, 	delayed. 	The order, 	however, 	remanded this
matter for more 	than a bare factual 	finding. 	The order 	itself
directs 	the ALJ 	to determine 	"whether or not 	DPA 	failed 	to 	meet
and confer 	in good 	faith." 	Such 	is 	an order 	for a 	legal
conclusion, 	based on the 	facts as a whole, 	and not a request 	for
the 	finding of 	facts which would 	support 	a per 	se 	conclusion.
88

directing that 	the merits 	be 	examined to determine 	if 	the 	facts
supported 	a 	finding 	of 	bad 	faith bargaining.
In this particular case, 	the parties do not present the
typical 	indicia of bad 	faith bargaining. 	Ground rules were
agreed 	upon promptly. 	Negotiations 	were 	scheduled 	and 	regularly
held. 	Both 	sides presented 	counter-proposals 	at 	every 	session.
Tentative 	agreement on various 	issues was 	reached at various
intervals 	in the bargaining process. 	The 	sole 	incident argued by
ACSA to be bad 	faith bargaining was 	DPA's 	refusal 	to make 	a
specific 	salary proposal until August 	23. 	Given the pace and
progress 	of negotiations, 	this 	incident is not bad faith
bargaining.
The 	standard to be applied is whether DPA had, 	in the
totality of 	circumstances, 	the requisite 	intent to reach
agreement. 	The 	entire 	course of negotiations 	shows 	they did.
That 	DPA and ACSA met 	and negotiated on all 	other 	issues
certainly 	indicated 	an 	intent 	to 	reach 	agreement.
Furthermore, 	DPA's use of the 	"proposal 	later" 	language in
its 	various 	counter-proposals 	indicates 	on its 	face 	the 	intent 	to
bargain.
Finally, 	and most damning of 	all 	to ACSA's 	argument 	is 	the
fact that a salary proposal was made, 	informally, 	on July 	12.
That 	it was 	not made 	formally was 	due 	solely to ACSA's 	actions 	in
telling Canar ACSA did want 	a 	low offer. 	ACSA 	seemed to want not
only a 	salary offer when the budget was 	signed, 	but the 	last,
best 	and 	final 	offer the 	employer 	could make 	at 	the 	very 	next
9

negotiating 	session. 	Such 	naivety 	about 	bargaining 	ill-suits
these parties. 	Negotiation is 	a give-and-take process of
compromise 	that the parties 	hope will 	result 	in 	final 	offers
close to what both 	sides 	can be 	comfortable with. 	Such a process
demands 	and anticipates 	the 	exchange of proposals 	(as 	these
parties did on every other article of the contract). 	ACSA
expected a detailed proposal 	on July 	12, 	and could have had one,
albeit a 	low offer. 	Had they taken such a proposal, 	they could
easily have 	countered at the next 	session, 	which would have 	then
led to another DPA counter-proposal, 	etc. 	In all 	likelihood, 	the
salary agreement would have been reached no 	sooner, 	and no 	later,
than it actually was. 	Thus, 	based on the totality of
circumstances, 	DPA's 	action in delaying a formal 	salary proposal
until August 	23 	did not 	constitute bad 	faith bargaining.
HOLDING AND 	ORDER
Based upon the above 	findings 	of 	fact and conclusions 	of
law, 	the allegation that DPA violated 	section 3519(c) 	of the
Dills Act 	is 	hereby DISMISSED.
Pursuant to California Administrative Code, 	title 	8,
section 	32305, 	this 	Proposed Decision and Order 	shall become
final unless 	a party 	files 	a 	statement 	of 	exceptions with the
Board 	itself 	at 	the 	headquarters 	office 	in Sacramento within 	20
days 	of 	service of 	this 	Decision. 	In accordance with PERB
Regulations, 	the 	statement of 	exceptions 	should 	identify by page
citation or exhibit number the portions 	of the record, 	if 	any,
relied upon for 	such 	exceptions. 	See California Administrative
10

Code, 	title 8, 	section 32300. 	A document is considered 	"filed"
when 	actually 	received before 	the 	close 	of 	business 	(5:00 	p.m.)
on the 	last day 	set 	for 	filing 	". 	. 	. o r when 	sent by telegraph
or certified or Express 	United 	States 	mail, 	postmarked not 	later
than the last day set for filing 	. 	. 	. 	." 	See California
Administrative Code, 	title 8, 	section 32135. 	Code of Civil
Procedure 	section 	1013 	shall 	apply. 	Any 	statement of 	exceptions
and 	supporting brief 	must be 	served 	concurrently with 	its 	filing
upon 	each party to 	this 	proceeding. 	Proof 	of 	service 	shall
accompany 	each 	copy 	served on a party or 	filed with 	the 	Board
itself. 	See California Administrative Code, 	title 8, 	sections
32300, 	32305 and 32140.
Dated: 	January 	11, 	1990
MARTHA 	GEIGER
Administrative 	Law 	Judge
11