State of California (Department of Mental Health) (PERB 0840S)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA 	STATE 	EMPLOYEES'
ASSOCIATION,
Charging 	Party,
v.
STATE OF CALIFORNIA 	(DEPARTMENT
OF 	MENTAL HEALTH),
Respondent.
Case No. 	S-CE-417-S
PERB Decision No. 84Q-S
September 	18, 	1990
Appearances: 	Howard Schwartz, 	Attorney, 	for California State
Employees' 	Association; 	Joan Branin, 	Labor Relations Counsel,
Department 	of 	Personnel Administration 	for 	State 	of 	California
(Department of Mental Health).
Before Craib, 	Shank and Camilli, 	Members.
DECISION
CAMILLI, 	Member: 	This case is before the Public Employment
Relations 	Board 	(PERB or Board) 	on exceptions 	filed by 	the
Department of Personnel Administration 	(DPA) 	on behalf 	of 	the
State of California, 	Department of Mental 	Health 	(DMH 	or
Respondent), 	to the proposed decision 	(attached hereto) 	of a PERB
administrative 	law judge 	(ALJ). 	The ALJ determined that DMH
violated subdivisions 	(c) 	and, 	derivatively, 	(b) 	of section 3519
of the Ralph C. 	Dills Act 	(Act) 	by 	implementing a 	change 	in the
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 	states, 	in pertinent part:
It 	shall be unlawful 	for the 	state to do any
of 	the 	following:
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scheduling 	system of 	employees 	working 	in 	treatment 	units 	at
Metropolitan State 	Hospital 	(Metropolitan) 	from a 	rotational
scheduling 	system to 	a 	set day off 	scheduling 	system without
notifying the California State Employees' 	Association 	(CSEA) 	or
giving 	it 	an opportunity 	to negotiate 	on the 	change.
We have 	reviewed the 	record 	in this 	case 	in 	its 	entirety,
including the proposed decision, 	Respondent's 	exceptions 	and
CSEA's 	response thereto and, 	finding the ALJ's 	findings 	of 	fact
to be 	free 	from prejudicial 	error, 	adopt them as 	our own. 	The
arguments 	raised by Respondent 	in its 	exceptions were, 	for the
most part, 	raised below and properly rejected by the ALJ.2
Therefore, 	with one 	exception and two 	clarifications 	noted below,
the 	Board adopts 	the ALJ's 	conclusions 	of 	law and affirms 	his
proposed 	finding 	that 	DMH 	unlawfully 	imposed 	a 	unilateral 	change
(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.
2In 	its 	exceptions, 	DMH 	cites Nazareth Literary and
Benevolent Institute. 	Inc. 	(1986) 	282 NLRB No. 	10 	(Nazareth) 	for
the proposition that 	an employer's 	action which 	is 	consistent
with 	the 	management 	rights 	clause 	in an 	expired agreement 	does
not 	constitute unlawful unilateral 	change. 	DMH 	complains 	that
the ALJ did not 	explain why the rule 	in that case was 	not 	applied
to the instant matter. 	Although the ALJ 	found, 	in this 	case,
that the memorandum of understanding 	(MOU) 	had expired, 	he also
noted that 	even if 	the MOU had not 	expired, 	the provisions 	relied
upon by 	DMH did not 	establish a 	status 	quo nor 	constitute 	a
"clear and unmistakable" 	waiver of CSEA's 	right to demand 	to 	meet
and 	confer on a 	scheduling 	system change. 	As we 	agree with 	the
ALJ's 	findings 	in this 	regard, 	we 	find Nazareth 	inapposite.
N	2

by 	implementing 	the 	set day 	off 	scheduling 	system at
Metropolitan.
DISCUSSION
1. 	DMH 	IS 	HELD RESPONSIBLE FOR VIOLATIONS OF 	THE ACT.
In 	its 	exceptions, 	DPA argues 	on behalf of DMH that 	DMH 	is
not 	authorized 	to 	meet 	and 	confer 	or 	negotiate 	on behalf 	of 	the
state; 	therefore, 	DMH could not be responsible 	for violating the
Act by refusing to negotiate. 	Although the ALJ 	implicitly
rejects 	this 	argument, 	the proposed decision does 	not 	explicitly
state the grounds 	therefor. 	We wish to do 	so here.
The 	labor relations 	representatives 	from both 	DMH 	and 	DPA
testified 	at 	the hearing 	concerning their 	involvement 	in 	this
matter. 	The CSEA representative 	also testified that 	she
contacted 	and 	discussed 	the 	issue with 	both 	DMH 	and 	DPA
representatives. 	The evidence 	is 	uncontradicted that the DMH
representative 	informed 	the 	CSEA representative 	that 	DMH was 	not
required to meet 	and confer on this 	issue, 	and referred the 	CSEA
representative to 	DPA. 	The CSEA representative promptly
contacted DPA, 	whose representative also 	stated that DPA, 	on
behalf of 	DMH, 	was 	not required to meet and confer on this 	issue.
The 	DPA 	representative 	confirmed this 	statement 	in writing,
agreeing 	solely to meet 	concerning the 	impact 	of 	the 	change.
It was 	DMH who unilaterally 	implemented the 	change 	in
scheduling, 	and refused to negotiate the matter. 	Then, 	DPA,
authorized 	to 	speak on behalf 	of 	DMH, 	likewise 	refused to
negotiate this 	change. 	The 	fact that DPA was 	not 	involved 	in the
w	
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unilateral 	change at its 	inception is 	of no import. 	Therefore,
DMH 	is properly held 	to 	have 	violated 	the Act by 	unilaterally
implementing 	the 	change.
2. 	MODIFICATION OF 	ORDER.
The proposed 	order 	requires 	DMH 	to 	cease 	and desist 	from:
Continuing 	to 	implement 	a 	fixed day 	off
scheduling 	system 	at 	the 	Metropolitan 	State
Hospital 	and at any of 	its 	other hospitals
that have 	a 	cyclical 	scheduling 	system,
including, 	but not limited to, 	the Patton
State Hospital, 	until it has met and
conferred with 	the 	affected 	employees'
recognized employee organization(s).
(Proposed decision, 	p. 	19.)
Respondent 	excepts 	to the proposed 	order 	claiming 	that 	the ALJ
exceeded his 	jurisdiction by 	ordering DMH 	to 	refrain 	from making
similar 	scheduling 	changes 	at 	other 	state 	hospitals 	and
institutions, 	similar to those made at Metropolitan, 	without
bargaining with 	the 	appropriate 	employee 	organizations.
At the hearing 	in this 	matter, 	the negotiator 	for DPA
testified 	that 	his 	department 	director 	had 	told 	him 	to 	proceed
with a department-wide 	change 	to the 	new 	scheduling 	system. 	The
negotiator 	for 	CSEA 	also 	testified 	that 	the 	DPA 	negotiator 	stated
at 	a meeting that the 	intention was 	to move 	the 	remaining mental
health hospitals 	into 	the 	new 	system after Metropolitan had
implemented that 	system. 	There was 	no other evidence 	in the
record 	that 	DMH 	unilaterally 	implemented 	the 	change 	in 	schedule
at 	any other 	state mental 	hospital 	or 	institution. 	Because 	there
is 	insufficient 	record evidence 	that 	a 	statewide program of
unilateral 	implementation of 	a 	change 	in 	scheduling 	systems 	is 	in
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progress, 	the Board 	finds 	the 	cease and desist order 	shall be
limited to 	the Metropolitan State Hospital.3
In accord with the discussion above, 	the Board must 	also
clarify the proposed decision. 	Citing 	Respondent's 	decision to
implement a 	statewide 	schedule modification, 	the ALJ 	finds 	that
the 	change 	in 	scheduling 	system constituted a 	change 	of 	policy
which has 	a 	generalized 	effect 	or 	continuing 	impact 	upon the
terms 	and conditions 	of 	employment 	of bargaining unit members.
(Grant Joint Union High School 	District 	(1982) 	PERB Decision
No. 	196, 	p. 	9.) 	For the reasons 	stated above, 	we do not adopt
that portion of 	the 	analysis which relies 	upon a 	statewide
scheduling modification to 	support 	the 	conclusion that 	a
unilateral 	change was 	implemented.
However, 	the ALJ also 	states 	that a 	change 	in 	scheduling has
a 	continuing 	impact on all of 	the 	employees 	it touches. 	The
Board has 	held that 	in a unilateral 	change 	case, 	the number of
employees 	affected 	is 	not 	always 	indicative of whether a policy
change has 	occurred. 	(Jamestown Elementary School 	District
(1990) 	PERB Decision No. 	795.) 	It is not necessary in this 	case
to 	find 	that the 	change 	in policy affects 	all 	the 	institutions 	in
the department because, 	as 	the ALJ noted, 	a change 	in scheduling
3Although we 	find that 	the 	order 	and 	statement 	of 	violation
in the notice 	should be 	limited to Metropolitan, 	we 	find 	it 	is
appropriate to require that the notice be posted 	systemwide, 	as
the 	violation to be 	remedied herein 	concerns 	contract 	language
applicable to the 	entire unit, 	whose members 	are employed on a
systemwide basis. 	(Regents 	of 	the 	University of California
(1990) 	PERB Decision No. 	826-H, 	p. 	13; 	Trustees of the California
State University 	(1988) 	PERB Order No. 	Ad-174-H.)
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policy at Metropolitan 	is 	a 	change which has 	a continuing 	impact
upon the 	terms 	and 	conditions 	of 	employment of bargaining unit
members, 	regardless of the number of employees 	involved.4
ORDER
Based upon the 	foregoing 	findings 	of 	fact, 	conclusions 	of
law and the 	entire record 	in this 	case, 	it 	is 	found that the
State of California 	(Department of Mental 	Health) 	violated
subdivision 	(c) 	and, 	derivatively, 	subdivision 	(b) 	of section
3519 of the Ralph C. 	Dills Act. 	Pursuant to section 3514.5(c),
it 	is 	hereby ORDERED that 	the 	State 	of California 	(Department 	of
Mental Health), 	its director and its representatives 	shall:
A. 	CEASE AND DESIST FROM:
1. 	Failing to meet and confer with 	the California
State Employees' 	Association on the 	scheduling 	system of
employees working 	in treatment 	units 	at 	the 	Metropolitan 	State
Hospital.
2. 	Continuing to 	implement a 	fixed day off 	scheduling
system at 	the Metropolitan State 	Hospital 	until 	it has 	met 	and
conferred with the California 	State Employees' 	Association.
3. 	Denying the California 	State Employees'
Association rights 	guaranteed 	it by the Ralph C. 	Dills Act.
4PERB precedent 	requires 	a 	finding of 	violation of 	the duty
to bargain 	in good 	faith when a 	change 	in policy has 	a
generalized 	effect 	or 	continuing 	impact 	upon terms 	and 	conditions
of 	employment. 	(Imperial Unified School District 	(1990) 	PERB
Decision No. 	825, 	fn. 	3, p. 	6.)
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B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE THE PURPOSES OF THE RALPH C. 	DILLS ACT:
1. 	Rescind the 	implementation of 	the 	fixed day off
scheduling 	system at 	the Metropolitan State 	Hospital 	and
reinstate 	the 	cyclical 	system used prior 	to 	such 	implementation.
2. 	Within thirty-five 	(35) 	days 	following the date
the Decision is 	no 	longer 	subject to reconsideration, 	post at all
work 	locations 	where 	notices 	to 	employees 	are 	customarily placed,
copies 	of 	the Notice 	attached 	as 	an Appendix hereto, 	signed by 	an
authorized agent of 	the 	employer. 	Such posting 	shall 	be
maintained for a period of 	thirty 	(30) 	consecutive workdays.
Reasonable 	steps 	shall 	be taken to 	insure 	that 	this 	Notice 	is 	not
reduced 	in size, 	defaced, 	altered or covered by any material.
3. 	Written notification of the actions 	taken to
comply with 	this 	Order 	shall 	be made 	to the 	Sacramento 	Regional
Director 	of 	the 	Public 	Employment 	Relations 	Board 	in accordance
with his 	instructions.
It 	is 	further ORDERED that all 	other aspects 	of 	the Charge
and 	Complaint 	are 	hereby 	DISMISSED.
Members 	Craib and 	Shank 	joined 	in this 	Decision.
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APPENDIX
NOTICE 	TO EMPLOYEES
POSTED 	BY ORDER OF 	THE
PUBLIC 	EMPLOYMENT RELATIONS 	BOARD
An Agency of 	the 	State of 	California
After a hearing in Unfair Practice Case No. 	S-CE-417-S,
California State Employees' 	Association v. 	State of California
(Department of Mental Health). 	in which all parties 	had the right
to participate, 	it has been found that the State of California
(Department of Mental Health) 	has violated subdivision 	(c) 	and,
derivatively, 	subdivision 	(b) 	of 	section 3519 	of the Ralph C.
Dills Act 	(Act). 	The State violated the Act when it 	failed to
meet 	and 	confer with the California 	State Employees' 	Association
before 	implementing 	a 	change 	in 	the 	scheduling 	system.
As 	a result of this 	conduct, 	we have been ordered to post
this 	Notice and we will:
A. 	CEASE AND DESIST FROM:
1. 	Failing to meet and confer with the California
State 	Employees' 	Association on the 	scheduling 	system of
employees working 	in treatment units 	at 	the Metropolitan State
Hospital.
2. 	Continuing to 	implement a 	fixed day off 	scheduling
system at 	the Metropolitan State 	Hospital 	until we have 	met 	and
conferred with the California State Employees' 	Association.
3. 	Denying the California State Employees'
Association rights 	guaranteed 	it by the Ralph C. 	Dills Act.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE THE PURPOSES OF THE RALPH C. 	DILLS ACT:
1. 	Rescind the 	implementation of 	the 	fixed day off
scheduling 	system at 	the Metropolitan State 	Hospital 	and
reinstate 	the 	cyclical 	system used prior to 	such 	implementation.
Dated: 	STATE 	OF 	CALIFORNIA
(DEPARTMENT OF 	MENTAL 	HEALTH)
By Authorized 	Agent
THIS 	IS AN OFFICIAL NOTICE. 	IT MUST REMAIN POSTED FOR AT LEAST
THIRTY 	(30) 	CONSECUTIVE WORKDAYS 	FROM THE 	DATE 	OF 	POSTING AND
MUST NOT BE REDUCED IN SIZE, 	DEFACED, 	ALTERED OR COVERED BY ANY
MATERIAL.
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STATE 	OF 	CALIFORNIA
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA 	STATE 	EMPLOYEES
ASSOCIATION,
Charging 	Party,
v.
STATE 	OF 	CALIFORNIA 	(DEPARTMENT OF
MENTAL HEALTH),
Respondent.
Unfair 	Practice
Case No. 	S-CE-417-S
PROPOSED DECISION
(5/18/90)
A p p e a r a n c e s : 	Howard 	Schwartz, 	A t t o r n e y , 	for 	the 	California 	State
E m p l o y e e s ' 	Association; 	Joan Branin, 	Labor Relations 	C o u n s e l ,
Department 	of 	Personnel 	Administration 	for 	State 	of 	California
(Department 	of 	Mental 	H e a l t h ) .
Before A l l e n 	R. 	Link, 	Administrative 	Law Judge.
PROCEDURAL 	HISTORY
On January 	12, 	1989, 	the California 	State 	E m p l o y e e s '
A s s o c i a t i o n 	(hereafter 	Charging 	Party 	or 	CSEA) 	filed 	an 	u n f a i r
practice 	charge 	with 	the 	Public 	Employment 	Relations 	Board
(hereafter 	PERB 	or 	Board) 	against 	the 	State 	of 	California
(Department 	of 	Mental 	Health) 	(hereafter 	Respondent 	or 	D M H )
alleging 	a violation of 	subdivisions 	( a ) , 	(b) 	and 	(c) 	of 	section
3519 	of 	the 	Ralph C. 	Dills 	Act 	(hereafter A c t ) . 1
1 T h e 	Ralph 	C. 	Dills 	Act 	is 	codified 	at 	Government 	Code
section 	3513 	et 	seq. 	All 	section references, 	unless 	o t h e r w i s e
noted, 	are 	to 	the Government Code. 	Subdivisions 	( a ) , 	(b) 	and 	(c)
of 	section 	3519 	state:
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
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.
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On March 21, 	1989, 	the General Counsel of PERB, 	after an
investigation of the 	charge, 	issued a Complaint alleging a
violation of 	subdivision 	(c), 	with a derivative violation of
subdivision 	(b), 	of 	section 3519. 	The allegation regarding a
violation of 	subdivision 	(a) 	of 	section 3519 was 	not 	included 	in
such Complaint. 	On April 	3, 	1989, 	the Respondent filed its
Answer to the Complaint.
On April 	18, 	May 1 and September 18, 	1989, 	informal
conferences 	were 	held 	to 	explore 	voluntary 	settlement
possibilities. 	No 	settlement was 	reached.
The 	formal hearing was held on October 	11, 	1989. 	The
parties 	briefed their respective positions. 	The 	case was
submitted for decision on March 	7, 	1990.
INTRODUCTION
Charging 	Party 	alleges 	that 	the 	Department 	of 	Mental 	Health
at 	the Metropolitan State Hospital, 	unilaterally 	instituted a
change 	in the 	employee work scheduling 	system, 	i.e. 	a 	change 	from
a 	"cycle" 	system to a 	"set days 	off" 	system.
The 	Respondent denies 	it violated the Act 	insisting, 	in the
alternative, 	that 	(1) 	the matter should be deferred to
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.
(c) 	Refuse or fail to meet and confer in
good 	faith with 	a 	recognized 	employee
organization.
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arbitration, 	(2) 	it did not alter either a written agreement or a
past practice, 	(3) 	CSEA waived its 	right to negotiate the matter,
and 	(4) 	the 	Department has 	met 	and 	conferred with CSEA regarding
the matter.
JURISDICTION
The parties 	stipulated, 	and it is therefore found, 	that the
Charging 	Party 	is 	the 	recognized 	employee 	organization 	for, 	among
others, 	the nurses 	at Metropolitan State Hospital 	and the
Respondent 	is 	the 	state 	employer within the meaning of 	section
3513.
FINDINGS 	OF 	FACT
CSEA is 	the nurses' 	Dills Act recognized employee
organization or exclusive representative. 	Prior to 	1987, 	nurses
at 	the Metropolitan State Hospital 	had various 	cyclical
scheduling systems, 	i.e. 	each employee had a 	set of revolving
days 	off. 	In 	1987, 	DMH determined that the then existing 	system
had to be 	changed due to what 	it believed was 	an excess 	of 	forced
overtime, 	budget overruns 	and difficulties 	in providing adequate
coverage. 	The 	DMH 	created a 	Labor/Management Committee 	in the
fall 	of 	1987 	to 	survey the 	employees 	and 	to make recommendations
regarding 	a 	new 	scheduling procedure. 	CSEA recommended 	the
employee 	nursing 	representatives 	for 	DMH's 	appointment 	to 	this
committee. 	As a result of this committee's recommendations, 	a
pilot program was 	instituted 	in May of 	1988. 	Under this program,
the 	nurses 	had 	set days 	off 	for a period of 	time but were 	on
either 	a 	one-or two-month 	cycle 	or rotation 	system.
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The 	DMH determined the pilot program was unsuccessful. 	In
October 	1988, 	it decided to 	implement a 	fixed day off 	scheduling
system with no 	cycling or rotational 	component. 	This 	new
scheduling 	system would affect 	approximately 	125 	nurses 	at 	the
Metropolitan State 	Hospital.
On November 22, 	1988, 	DMH notified the CSEA the nurses'
scheduling 	system was 	to be 	changed. 	Attached to 	such
notification was 	an offer to 	consult and discuss 	the matter. 	DMH
admitted 	this was 	just a 	first 	step 	and 	it would 	soon 	implement
this 	scheduling change on a 	state-wide basis 	at all 	of 	its
hospitals. 	Preliminary 	steps 	in this 	regard had been already
taken at 	Patton State 	Hospital 	in San Bernardino.
On December 8, 	1988, 	CSEA Senior Labor Relations
Representative 	Elizabeth Russo 	met with 	representatives 	of 	DMH
and demanded to meet and 	confer2 on the 	subject 	of 	the decision
to 	change the 	scheduling 	system at Metropolitan. 	James 	Moore,
chief 	of 	labor relations 	for DMH, 	was 	the 	spokesperson for DMH.
He declined to 	"meet and 	confer" 	over the decision and referred
Russo 	to 	the Governor's 	Department 	of 	Personnel Administration
(hereafter DPA) 	stating they had the 	exclusive right 	to meet 	and
confer on 	such matters. 	Moore 	cited numerous 	contacts 	and
discussions 	that 	he 	had had with Russo 	in the past 	regarding 	the
hospital's 	scheduling 	system and the 	formation of 	the
2 Meet and 	confer 	is 	the term used by the Dills Act to
denote negotiations.
4

Labor/Management Committee 	as 	additional 	justification 	for his
refusal 	to meet and 	confer.
Moore did agree 	to allow CSEA to 	offer 	input 	into 	the
implementation of 	the plan. 	He reminded Russo that the new
scheduling 	system would be 	implemented on January 	1, 	1989. 	CSEA
was 	only allowed to discuss 	such matters 	as 	the method by which
various 	seniority 	lists would or would not be merged. 	Moore 	once
again made 	it 	clear that DMH was 	going to 	change 	each of 	its
hospitals 	to 	a 	set days 	off 	scheduling 	system.
On December 22, 	1988, 	Russo wrote to DPA demanding
negotiations 	on the decision to 	change 	the 	scheduling 	system. 	On
December 29, 	1988, 	David Gilb, 	senior labor relations officer for
DPA, 	responded to Russo. 	He refused to meet and confer on the
subject, 	citing the parties' 	MOU as 	justification for this
position. 	He also 	explained that the 	implementation date 	for 	the
new 	system had been delayed to February 	1, 	1989.
On January 	19, 	1989, 	at a meet and confer 	session on the
subject of a 	successor MOU, 	Russo accused DPA of 	refusing to meet
and 	confer over 	the 	decision to 	change 	the 	scheduling 	system.
Gilb, 	without admitting the DPA was 	not meeting and 	conferring,
agreed to 	set up 	a 	series 	of meetings 	for the purpose of 	meeting
and 	conferring over the 	impact or the 	"effects" 	of the 	change 	in
the 	scheduling 	system. 	Russo agreed to these meetings 	but
insisted 	she 	reserved the 	right 	to 	bring up 	alternative
scheduling 	systems. 	Gilb told her that he would 	listen to
anything that 	she had to 	say.
5
5

On February 6 and March 20, 	1989, 	these meet and confer
sessions 	on the 	impact or the 	"effects" 	of 	the 	scheduling 	system
modification were held. 	Pursuant 	to 	DPA's 	statement on January
19, 	the 	scope of the discussion was 	generally limited to the
impact or 	"effects" 	of DMH's 	scheduling change, 	although there
was 	some 	general discussion regarding alternatives 	to 	the 	fixed
days 	off 	system. 	On March 20, 	the parties 	entered into an
agreement 	that 	covered the 	effects 	of 	DMH's 	new 	scheduling
system. 	At that time the 	state offered to 	include a provision 	in
the 	agreement 	that would 	allow CSEA to 	meet 	and 	confer 	on any
problem(s) 	that arose relative 	to the 	implementation of 	the new
system, 	if CSEA would withdraw its 	unfair 	labor practice 	charge.
CSEA would not 	agree 	to withdraw the 	charge. 	The 	State 	said 	it
wanted 	this 	meet-and-confer provision 	in the 	agreement 	anyway 	and
CSEA agreed but there was 	no 	quid pro quo 	given 	for the
provision.
This written 	"effects" 	agreement states, 	in its opening
sentence, 	"(T)he parties have met and conferred over the 	fixed
days 	off 	system and hereby agree 	to the 	following." 	There 	is
nothing 	in the 	agreement 	that 	suggests 	any bilateral 	accord 	on
DMH's 	decision to modify the Metropolitan 	scheduling 	system. 	In
paragraph no. 	4, 	the agreement 	states that the parties will meet
to evaluate the new system no later than September 	15, 	1989, 	and
that 	the 	"State 	shall 	seriously 	consider 	input 	from CSEA/SEIU
Local 	1000 	and 	any recommended 	changes 	to 	the days-off 	scheduling
system." 	(Emphasis 	added.)
66

On March 	30, 	the 	state 	signed the agreement. 	On May 	1,
1989, 	CSEA signed the agreement. 	When this agreement was
reached, 	Russo made 	it very 	clear that CSEA did not waive 	any 	of
its 	rights 	and would 	continue 	to press 	the unfair 	labor practice
it had filed on January 	12, 	1989, 	concerning DMH's 	and DPA's
failure 	to meet 	and 	confer on the 	scheduling decision.
The 	Respondent 	relies 	on various 	sections 	of 	the MOU 	in 	its
defense to the charge. 	Some of these 	sections 	are as 	follows:
20.1 	Workweek
. 	. 	. 	Workweeks and workdays of different
number of hours 	may be 	scheduled by the 	State
in order to meet the varying needs 	of 	the
State.
20.10 	Overtime 	Scheduling
b. 	The 	Departments 	recognize 	and understand
the 	importance 	of 	reducing mandatory 	overtime
to Registered Nurses. 	To this end, 	the
departments will 	make 	every 	effort to
schedule 	staff 	in a manner to reduce the need
for mandatory overtime. 	The Union recognizes
the 	need 	for mandatory 	overtime 	based 	on 	the
fluctuating nature 	of 	the work.
The state 	(management) 	rights clause, 	section 4b, 	contains
the 	following 	language:
State 	Rights
4b. 	. . . 	the rights 	of 	the State 	shall
include, 	but not be 	limited to, 	. . . 	to
determine, 	consistent with Article VII 	of the
Constitution, 	the Civil 	Service Act and rules
pertaining thereto, 	the procedures 	and
standards 	of 	selection 	for 	employment and
promotion, 	layoff, 	assignment, 	scheduling and
training. . . .
77

The MOU 	also 	contains 	a 	description of what 	conditions 	must
be present 	in order 	for a 	duty 	to negotiate 	to arise. 	This
description is 	set forth in Article 24.1, 	and is as 	follows:
Article 	24 	Entire Agreement 	and 	Duration
24.1b. 	The parties 	agree 	that the
provisions 	of 	the 	Subsection 	shall 	apply 	only
to 	matters 	which 	are 	not 	covered 	in this
Agreement.
The parties 	recognize 	that during 	the
term of 	this Agreement 	it 	may be 	necessary
for the 	State to make 	changes 	in areas within
the 	scope of negotiations. 	Where the 	State
finds 	it necessary to make 	such changes, 	the
State 	shall 	notify CSEA Local 	1000 	of 	the
proposed 	change 	30 	days prior to 	its 	proposed
implementation.
The parties 	shall 	undertake 	negotiations
regarding 	the 	impact 	of 	such 	changes 	on the
employees 	in Unit 	17, 	when all three of the
following 	exist:
(1) 	Where 	such changes would affect the
working conditions 	of 	a 	significant 	number 	of
employees 	in Unit 	17;
(2) 	Where the 	subject matter of 	the
change 	is 	within the 	scope 	of 	representation
pursuant to the Ralph C. 	Dills Act.
(3) 	Where CSEA Local 	1000 	requests 	to
negotiate with the 	State.
Any 	agreement 	resulting 	from 	such
negotiations 	shall 	be 	executed 	in writing 	and
shall 	become 	an addendum to 	this 	Contract.
If 	the parties 	are 	in disagreement as 	to
whether a proposed 	change 	is 	subject to this
Subsection, 	such disagreement may be
submitted 	to 	the 	arbitration procedure 	for
resolution. 	The arbitrator's 	decision 	shall
be binding. 	In the 	event negotiations 	on the
proposed 	change 	are undertaken, 	any 	impasse
which 	arises 	may be 	submitted to 	mediation
pursuant 	to 	Section 	3518 	of 	the 	Ralph C.
Dills Act.
8

The MOU 	contains 	no 	other references 	to 	the 	employee work
scheduling 	system. 	The 	successor MOU was 	neither offered 	nor
admitted 	into 	evidence.
ISSUE
When the 	Department 	of 	Mental 	Health 	implemented 	the 	fixed
days off 	schedule 	for employees 	in State Bargaining Unit No. 	17
at Metropolitan State Hospital, 	did it violate subdivision 	(c) 	of
section 	3519?
CONCLUSIONS 	OF 	LAW
A unilateral 	change 	in terms 	and 	conditions 	of 	employment
within the 	scope of 	representation is 	a per 	se refusal 	to
negotiate. 	NLRB v. 	Katz 	(1962) 	369 U.S. 	736 	[50 LRRM 2177].
PERB has 	long recognized this 	principle. 	Pajaro Valley 	Unified
School District 	(1978) 	PERB Decision No. 	51; 	San Mateo County
Community College District 	(1979) 	PERB Decision No. 	94.
Under 	section 	3519(c) 	an employer 	is 	obligated to meet and
confer 	in good 	faith with 	a 	recognized 	employee 	organization
about matters within the 	scope of 	representation.
Section 	3516 	sets 	forth the Act's 	scope of 	representation.3
It 	has 	long been held by PERB 	that 	an employee's work 	schedule 	is
within the 	scope of 	representation. 	Palos Verdes 	Peninsula
Unified 	School 	District/Pleasant Valley 	School 	District 	(1979)
3 Section 3516 states, 	in pertinent part, 	as follows:
3516. 	SCOPE OF REPRESENTATION
The 	scope of 	representation 	shall 	be 	limited to
wages, 	hours, 	and other terms and conditions of
employment, . . .
99

PERB Decision No. 	96; 	Oakland Unified School District 	(1983) 	PERB
Decision No. 	367.
Prior to 	1987, 	the nurses 	at Metropolitan State Hospital had
a 	cyclical 	scheduling 	system. 	CSEA had agreed 	to 	various
adjustments 	in that 	scheduling 	system. 	However, 	when the DMH, 	in
1989, 	unilaterally implemented a 	set days 	off 	scheduling 	system
with no 	cyclical 	component, 	it altered the 	established past
practice. 	Such alteration required the concurrence 	of 	the
affected employees' 	recognized employee organization, 	CSEA, 	or
the completion of 	statutory procedures. 	Rather than agree, 	CSEA
transmitted 	a 	demand to the 	DMH 	to meet and 	confer 	in good 	faith
with regard to 	the matter. 	DMH would only agree 	to permit CSEA
to 	consult, 	provide 	input and discuss. 	This 	failure to meet and
confer 	fell 	below the duty required of 	it by the Act and 	is
therefore, 	absent a valid defense, 	a violation of 	subdivision 	(c)
of 	section 3519.
Department's 	Defenses
a. 	Matter 	Should be 	Deferred 	to Arbitration
The 	DMH 	insists 	that 	the MOU provisions 	that 	require
arbitration 	survived its 	expiration date of August 	31, 	1988,4 and
4 The Unit No. 	17 	MOU was 	originally effective 	from August
16, 	1987, 	through June 30, 	1988. 	Prior to completion of
negotiations 	on a 	successor agreement, 	the parties 	agreed to
extend the MOU expiration date to August 	31, 	1988. 	No 	further
extensions were agreed to 	and the MOU 	expired on that date. 	The
parties 	eventually 	agreed 	to 	and 	ratified 	a 	successor 	agreement
with an effective date of May 3, 	1989. 	There was no evidence
proffered 	regarding 	any retroactivity 	of 	the MOU.
10

controlled any 	duty 	to meet 	and 	confer 	it 	may have 	had 	in this
m a t t e r .
The 	Respondent propounds 	two 	theories 	supporting 	its
position 	that 	these provisions 	survived 	and require deferral 	to
arbitration. 	First, 	according to the Respondent, 	as the dispute
arose at 	a time when the MOU was 	still 	in effect the 	obligation
to arbitrate 	survives 	the termination of the MOU. 	Secondly, 	the
defense continues, 	even though the words 	"during the term of 	this
Agreement" 	appear 	in the Entire Agreement Clause of 	the MOU
(section 24.1b - 	see p.8 	for full text), 	this phrase did not
cause 	the 	section to 	expire. 	The DMH 	insists 	that the parties
themselves 	at 	all 	relevant 	times 	continued to 	act 	as 	though the
section were 	in effect. 	Therefore, 	the actions 	of the parties
provide proof 	that 	they 	intended 	section 	24.1b to 	remain 	in
effect 	even though the MOU had 	expired.
The first theory is based on Nolde Bros.. 	Inc. 	v. 	Local 	358.
Bakery and Confectionery Workers Union 	(1977) 	430 	U.S. 	243 	[94
LRRM 2753]. 	PERB, 	in Anaheim City School District 	(1983) 	PERB
Decision No. 	364, 	quoting Nolde Bros.. 	said:
. 	. 	. 	the Supreme Court established a
rebuttable 	presumption of 	arbitrability where
the dispute arises 	out of a right 	"arguably
created" 	by 	the 	expired 	collective
[bargaining] 	agreement, 	where the parties
have 	agreed to 	submit 	contractual disputes 	to
arbitration, 	and where there is no clear 	.
evidence of 	an intention by the parties 	that
the duty to 	arbitrate will 	terminate upon
expiration of the agreement.
Anaheim, 	supra. at p. 	18
11

In 	support of 	its 	contention that the dispute 	arises 	from a
right 	"arguably created" 	by the 	expired MOU, 	the 	Respondent 	cites
the 	1987 	establishment of 	the 	Labor/Management Committee 	and 	the
1988 	initiation of 	the pilot program. 	It 	stresses 	the 	fact that
both of 	these 	instances 	occurred during the term of 	the MOU.
The Respondent's reliance on the Nolde Bros, 	case in
general, 	and these two events 	in particular, 	is misplaced. 	Until
DMH management notified CSEA on November 22, 	1988, 	that 	it was
going to 	alter the 	scheduling 	system, 	there was 	no dispute. 	Even
the 	dispute 	that 	eventually 	arose had 	nothing to 	do with 	any
substantive provision of the MOU. 	It 	is difficult to understand
upon what 	facts 	the 	Respondent 	relies when 	it 	contends 	that 	the
dispute arose out of 	a right created by the 	expired MOU.
Certainly 	the 	fact 	that 	there 	had been discussions 	regarding 	the
general 	topic 	of 	scheduling while the MOU was 	in effect would not
be 	sufficient to 	create 	such a nexus.
The 	dispute 	neither occurred during 	the 	effective dates 	of
the MOU, 	nor did it arise over language 	found in such MOU. 	It 	is
therefore held that 	the dispute did not 	arise out of 	a 	right
"arguably created" 	by the expired MOU. 	Therefore, 	the
arbitration provision does 	not 	survive 	the MOU's 	expiration and,
consequently, 	does 	not control 	the rights 	and obligations 	of 	the
parties.
The 	Respondent's 	second theory of 	survival 	hinges 	on the
actions 	of the parties 	themselves. 	In an attempt to bring the
matter within the 	ambit of 	the Anaheim decision 	(see 	quote
12

supra), 	the Respondent cites, 	at length, 	various provisions of
the 	MOU that use the term, 	"during the term of 	this 	Contract 	(or
this Agreement)" 	in support of 	its position that the parties
meant 	the MOU to 	remain 	in effect until 	the 	successor contract
was 	negotiated and ratified. 	It also 	supports 	its position with
the 	fact 	that 	Russo 	never 	expressly repudiated 	the MOU until 	the
unfair practice charge was 	filed and, 	in its 	(DMH) 	opinion, 	never
"evidenced any intent to have the requirements 	of 	the Entire
Agreement Clause, 	the State's Rights Clause, 	or section 20.10
terminate on August 30, 	1988."
These MOU provisions 	are 	not applicable 	to the 	issue 	at
hand. 	They do 	not 	cause 	the dispute 	to be 	"arguably created" 	by
the MOU.
The 	Respondent 	seems 	to be 	arguing that the 	arbitration
provision of 	an expired MOU 	is 	not 	to be 	terminated until 	one
side 	notifies 	its 	contractual partner that 	it considers 	the
contract 	at an end. 	The Respondent was 	not able to provide any
legal 	authority 	for this 	rather novel 	contractual 	theory.
There has 	been no valid 	legal 	theory proffered by 	the
Respondent upon which 	it 	could be held 	that 	the provision
regarding 	arbitration 	in the 	MOU 	survived 	its 	expiration date.
Therefore, 	it 	is held that the matter 	should not be deferred to
arbitration.
b. 	No Change 	of 	Policy Proven
The 	Department 	insists 	that 	there was 	no 	change 	of policy on
its 	part because the nurses 	in the DMH are a 	small percentage 	of
13

all 	nurses 	in state bargaining Unit No. 	17 	and the nurses 	at
Metropolitan State 	Hospital 	are 	a 	small portion of 	the 	nurses 	in
the Department.
DMH 	cites 	Grant Joint 	Union High School 	District 	(1982) 	PERB
Decision No. 	196 	in support of 	its position. 	This decision, 	on
page 9, 	states as follows:
This 	is 	not to 	say that 	every breach of
contract also violates 	the Act. 	Such a
breach must amount to a change 	in policy, 	not
merely a default 	in a 	contractual 	obligation,
before 	it 	constitutes 	a violation of 	the duty
to bargain. 	This distinction is 	crucial. 	A
change of policy has, 	by definition, 	a
generalized 	effect 	or 	continuing 	impact 	upon
the 	terms 	and conditions 	of 	employment 	of
bargaining unit members. 	(Emphasis 	added.)
The 	Department's 	reliance 	on this decision is 	misplaced 	for
two reasons. 	First, 	a change 	in scheduling has 	a 	continuing
impact on all of the employees 	it touches. 	Secondly, 	the
Department 	cannot 	subdivide 	and 	chronologically 	stagger 	its
state-wide 	schedule 	modification decision 	and 	then 	insist 	that
each sub-decision, 	as 	it affects each hospital in turn, 	has no
generalized 	effect. 	A schedule 	change 	at 	one hospital with an
announced 	similar 	schedule 	change at 	all 	of 	the 	rest 	of 	the
hospitals 	is 	held to have a generalized effect. 	The Grant 	change
of policy definition is 	in the alternative, 	i.e., 	the presence of
either 	a 	generalized 	effect 	or 	a 	continuing 	impact will
constitute a 	change of policy. 	It 	is 	found that DMH's 	decision
had both 	a 	generalized 	effect 	and a 	continuing 	impact 	on the
terms 	and 	conditions 	of 	employment 	of 	bargaining unit members.
14

c. 	CSEA Waived 	its 	Right 	to Negotiate on the 	New
Scheduling 	System
It has previously been held the MOU between the parties 	had
expired. 	Given that holding, 	there 	can be no waiver defense 	as
the 	contractual 	"waiver" 	referenced by 	DMH had 	expired with 	the
MOU. 	However, 	even if the previous 	holding had not obviated this
defense, 	it would not have been successful.
The 	Respondent bases 	this 	defense 	on the 	"state 	(management)
rights" 	clause 	contained 	in the MOU. 	It 	insists 	that 	such clause
gives 	it 	a right to unilaterally modify the 	subject 	employees'
scheduling 	system. 	The language 	it refers 	to 	is 	"the rights 	of
the State shall include . 	. 	. the procedures . 	. 	. 	for . 	. 	.
scheduling. 	. . . " 	(See 	MOU 	section 	4b-page 	7.)
It 	is well 	settled that waiver of 	specific 	rights 	on the
part 	of 	the 	charging party can be 	a 	valid defense 	to 	a unilateral
change. 	Amador Valley Joint 	Union High 	School 	District 	(1978)
PERB Decision No. 	74. 	However, 	a waiver must be established by
clear 	and 	unmistakable 	language 	and 	this 	clarity 	is 	even more
essential when a waiver of a 	statutory right 	is 	asserted. 	The
party 	asserting the waiver has 	the burden to 	establish 	such
defense 	and 	any doubts 	must 	be 	resolved 	against 	the 	asserting
party. 	Compton Community College District 	(1989) 	PERB Decision
No. 	720; 	Placentia Unified School District 	(1986) 	PERB Decision
No. 	595. 	Contract terms will not 	justify a unilateral management
act 	on a 	mandatory 	subject 	of bargaining unless 	the 	contract
expressly or by necessary 	implication confers 	such 	a right. 	Los
Angeles Community College District 	(1982) 	PERB Decision 252. 	It
15

is 	held that the general 	management rights 	language contained 	in
the parties' 	MOU does 	not expressly or by necessary 	implication
confer 	a 	right 	on the 	Respondent 	to 	unilaterally modify 	the
scheduling 	system at Metropolitan State 	Hospital. 	Therefore,
such 	contractual 	language does 	not 	constitute a 	clear and
unmistakable waiver of the CSEA's 	right 	to demand to meet 	and
confer 	on a 	scheduling 	system 	change.
d. 	The 	State has 	Met 	and Conferred with the 	CSEA on the
Scheduling 	System 	Change 	at 	Metropolitan 	State 	Hospital
First, 	the Respondent attempts 	to use the 	simultaneous meet
and 	confer 	sessions 	that 	occurred on the 	successor MOU 	as 	proof
that 	it 	met 	and 	conferred 	over 	the 	scheduling 	system 	change.
This 	does 	not provide a defense to this 	complaint as 	the 	two
duties 	to meet and confer are 	separate 	from one another. 	One
duty requires 	the negotiations 	of 	future 	contractual provisions.
The 	DMH met this 	duty and this 	matter is 	not at 	issue. 	The
second requires 	the 	DMH to negotiate 	changes 	it proposes 	in the
scheduling 	system status 	quo. 	It 	is 	this 	duty that DMH 	failed to
meet.
Secondly, 	DMH cites 	the March 20 	agreement on the 	"effects"
of 	DMH's 	unilateral 	scheduling decision as 	proof 	that 	the parties
did meet 	and confer over the decision itself. 	The 	"effects"
agreement, 	in neither 	its 	opening paragraph nor 	its 	general
provisions, 	does not support DMH's position. 	In addition,
paragraph No. 	4 of this 	"effects" 	agreement 	supports CSEA's
contention that 	the 	State 	agreed 	to 	only 	"seriously 	consider
input" 	into 	the 	eventual 	schedule modification decision and
16

refused 	to agree to meet 	and 	confer over the matter. 	(See
Findings, 	page 	6-7.)
Based on all of the evidence presented, 	it is determined
that 	the 	Respondent did not 	meet 	and 	confer with 	the 	CSEA on 	the
subject 	of 	the 	scheduling 	system modification and 	had 	no 	valid
reason for not doing so. 	It is held, 	therefore, 	that 	such action
violated 	subdivision 	(c) 	of 	section 3519. 	As this 	action
concurrently denied 	to 	the 	CSEA rights 	guaranteed 	to 	it 	by 	the
Act, 	it 	is 	also 	found that the State of California violated
subdivision 	(b) 	of section 3519.
SUMMARY
Based on the 	foregoing Findings 	of 	Fact 	and Conclusions 	of
Law, 	and the entire record in this case, 	it is determined that
when the 	Respondent 	modified 	the 	scheduling 	system at 	the
Metropolitan State Hospital, 	it violated 	subdivisions 	(b) 	and 	(c)
of 	section 3519.
REMEDY
PERB, 	in section 3514.5(c) 	is given
. 	. 	. 	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.
In order to remedy the unfair practice of the 	Respondent 	and
to prevent 	it 	from benefiting 	from its 	unfair labor practice, 	and
to effectuate the purposes of the Ralph C. 	Dills Act, 	it is
appropriate 	to 	order 	the 	State 	to 	cease 	and desist 	from 	failing
17

to 	meet 	and 	confer with the 	California 	State 	Employees
Association on the 	scheduling 	system for Bargaining Unit No. 	17
nurses 	employed at the Metropolitan State Hospital. 	A unilateral
change, 	when involving a refusal to bargain, 	is typically
remedied by restoring the 	status 	quo 	ante, 	by ordering the
employer to negotiate on the matter at 	issue, 	and by making
particular 	employees 	whole 	for 	any benefits 	the 	employer
discontinued. 	The discontinued benefit, 	periodic weekend days
off, 	does 	not 	lend itself to a monetary quantification. 	There
will 	be 	no 	monetary 	award.
It 	is 	also 	appropriate 	that the 	Respondent be 	required to
post a notice 	incorporating the terms 	of 	this order. 	The notice
should 	be 	subscribed 	by an authorized 	agent 	of 	the 	State,
indicating that 	it will 	comply with the 	terms 	thereof. 	The
notice 	shall not be reduced in size, 	defaced, 	altered or covered
by any 	other material. 	Posting 	such 	a 	notice will provide
employees 	with notice 	that the 	Respondent has 	acted 	in an
unlawful 	manner 	and 	is 	being required 	to 	cease and desist 	from
this 	activity. 	It 	effectuates 	the purposes 	of the act that
employees 	be 	informed of 	the 	resolution of 	the 	controversy and
will 	announce 	the 	Respondent's 	readiness 	to 	comply with the
ordered remedy. 	See 	Placerville 	Union School 	District 	(1978)
PERB Decision No. 	69. 	In Pandol and Sons v. 	Agricultural Labor
Relations Board 	(1979) 	98 Cal.App.3d 580, 	587 	[159 Cal.Rptr.
584], 	the California District Court of Appeal approved a 	similar
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posting requirement. 	See also, 	NLRB v. 	Express Publishing Co.
(1941) 	312 U.S. 	426 	[8 LRRM 415].
PROPOSED 	ORDER
Based upon the 	foregoing Findings 	of 	Fact, 	Conclusions 	of
Law and the 	entire record of this 	case, 	it 	is 	found that the
State of California 	(Department of Mental 	Health) 	violated
subdivision 	(c) 	and, 	derivatively, 	subdivision 	(b) 	of section
3519 	of the Ralph C. 	Dills 	Act. 	Pursuant to 	section 3514.5(c) 	it
is 	hereby 	ORDERED that the 	State 	of 	California 	(Department 	of
Mental Health), 	its director and its representatives 	shall:
A. 	CEASE AND DESIST FROM:
1. 	Failing to meet and confer with the California
State 	Employees Association on the nurses' 	scheduling 	system at
the 	Metropolitan State Hospital.
2. 	Continuing to 	implement 	a 	fixed day off 	scheduling
system at 	the Metropolitan State 	Hospital 	and at any of 	its 	other
hospitals 	that have a cyclical 	scheduling 	system, 	including, 	but
not 	limited to, 	the Patton State Hospital, 	until 	it has met and
conferred with the 	affected 	employees' 	recognized 	employee
organization(s).
3. 	Denying the California 	State 	Employees Association
rights 	guaranteed it by the Ralph C. 	Dills Act.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE THE PURPOSES OF THE RALPH C. 	DILLS ACT:
1. 	Rescind the 	implementation of 	the 	fixed day off
scheduling 	system at 	the 	Metropolitan 	State 	Hospital 	and
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reinstate 	the 	cyclical 	system used previous 	to 	such
implementation.
2. 	Within the 	(10) 	workdays 	of 	service of a 	final
decision in this 	matter, 	post at all work locations where notices
are 	customarily placed at 	all 	Department 	of Mental 	Health
hospitals, 	copies of the Notice attached hereto as 	an Appendix.
The Notice must be 	signed by 	an authorized agent of 	the 	State 	of
California, 	indicating that the 	state 	shall 	comply with the 	terms
of 	this 	Order. 	Such posting 	shall 	be maintained for a period of
thirty 	(30) 	consecutive workdays. 	Reasonable 	steps 	shall be take
to 	insure that the Notice 	is 	not reduced in size, 	altered,
defaced 	or 	covered by any 	other material.
3. 	Upon issuance of a 	final decision, 	make written
notification of 	the 	actions 	taken to 	comply with this 	Order to
the 	Sacramento Regional 	Director of 	the 	Public 	Employment
Relations 	Board 	in accordance with his 	instructions. 	Continue 	to
report 	in writing to 	the Regional 	Director thereafter as
directed. 	All 	reports 	to the Regional 	Director 	shall be
concurrently 	served 	on the 	Charging 	Party herein.
It 	is 	further ORDERED that 	all 	other aspects 	of 	the Charge
and 	Complaint 	are 	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
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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
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: May 18, 19 90
ALLEN R. 	LINK
Administrative 	Law 	Judge
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