State of California (Department of Personnel Administration) (International Union of Operating Engineers Local 39) (PERB 0916S)

STATE OP 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT RELATIONS 	BOARD
INTERNATIONAL 	UNION OF 	OPERATING
ENGINEERS, 	LOCAL 39,
Charging 	Party,
v.
STATE OF CALIFORNIA 	(DEPARTMENT OF
PERSONNEL ADMINISTRATION),
Respondent.
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) 	Case No. 	S-CE-532-S
PERB Decision No. 	916-S
January 2, 	1992
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Appearance: 	Van Bourg, 	Weinberg, 	Roger & Rosenfeld by Stewart
Weinberg, 	Attorney, 	for International Union of Operating
Engineers, Local 39.
Before Hesse, 	Chairperson; 	Shank and Camilli, 	Members.
DECISION AND 	ORDER
CAMILLI, 	Member: 	This case is before the Public Employment
Relations 	Board 	(Board) 	on appeal by the 	International 	Union of
Operating Engineers, 	Local 3 9 to a Board agent's partial
dismissal 	(attached hereto) 	of 	its 	charge that the 	State of
California 	(Department of Personnel Administration) 	(DPA) 	failed
to bargain 	in good 	faith 	in violation of 	section 	3519(b) 	and 	(c)
of 	the Ralph C. 	Dills Act 	when it made a 	final 	offer after being
informed 	that 	the 	Board had 	issued 	a 	complaint 	based 	upon 	failure
to provide 	information. 	The Board has 	reviewed the partial
dismissal, 	and 	finding it to be 	free 	from prejudicial 	error,
adopts 	it as 	the decision of the Board 	itself.
Ralph1Ralph 	C. 	Dills Act 	is 	codified at Government Code 	section
3512 	et 	seq. 	Unless 	otherwise 	indicated, 	all 	statutory
references 	herein are to 	the Government Code.

The portion of 	the 	charge 	in Case No. 	S-CE-532-S which
alleges 	DPA violated 	section 3519(b) 	and 	(c) 	when it made a 	final
offer after 	issuance 	of 	a 	complaint by the 	Board 	is 	hereby
DISMISSED WITHOUT 	LEAVE 	TO AMEND.
Chairperson Hesse 	and Member 	Shank 	joined 	in this 	Decision.
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STATE OF CALIFORNIA 	PETE WILSON, Governor
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
Headquarters Office
1031 18th Street
Sacramento, CA 	95814-4174
(916) 322-3088
November 22, 	1991
Mr. 	Stewart Weinberg, 	Attorney
Van Bourg, 	Weinberg, 	Roger & Rosenfeld
875 	Battery 	Street
San Francisco, 	CA 	94111
Re: 	International Union of Operating Engineers. 	Local 	39 v.
State 	of 	California 	(Department 	of 	Personnel 	Administration)
Unfair Practice 	Charge 	Case 	No. 	S-CE-532-S
PARTIAL 	DISMISSAL 	LETTER
Dear Mr. 	Weinberg:
On October 	7, 	1991, 	the 	International 	Union of Operating
Engineers, 	Local 	39, 	filed the 	above-referenced 	charge 	alleging
violations 	of Government Code 	section 	3519(b) 	and 	(c). 	In that
charge, 	you 	specifically 	alleged 	that 	the 	employer had 	violated
the 	Government 	Code 	by 	a 	failure 	to 	provide 	information 	and 	by
delivering the State's 	"last, 	best, 	and 	final" 	offer after the
Union 	had 	informed 	the 	State's 	negotiator 	that 	an 	unfair 	practice
complaint 	had 	issued 	regarding 	a 	prior 	failure 	to 	provide
information.
I 	indicated 	to you 	in my 	attached 	letter 	dated 	November 	13, 	1991
that 	certain allegations 	contained 	in 	the 	charge 	did 	not 	state 	a
prima 	facie 	case. 	You were 	advised 	that 	if 	there were 	any
factual 	inaccuracies 	or 	additional 	facts 	that would 	correct 	the
deficiencies 	explained 	in 	that 	letter, 	you 	should 	amend 	the
charge 	accordingly. 	You were 	further 	advised 	that 	unless 	you
amended 	these 	allegations 	to 	state 	a prima 	facie 	case, 	or
withdrew them prior to November 20, 	1991, 	the allegations would
be 	dismissed.
I 	have 	not 	received 	either 	a 	request 	for withdrawal 	or 	an 	amended
charge 	and 	am 	therefore 	dismissing 	those 	allegations 	which 	fail
to 	state 	a 	prima 	facie 	case 	based 	on 	the 	facts 	and 	reasons
contained 	in my November 	14, 	1991 	letter.

Right 	to 	Appeal
Pursuant 	to 	Public 	Employment 	Relations 	Board 	regulations, 	you
may 	obtain 	a 	review of 	this 	dismissal 	of 	certain 	allegations
contained 	in 	the 	charge 	by 	filing 	an 	appeal 	to 	the 	Board 	itself
within 	twenty 	(20) 	calendar 	days 	after 	service 	of 	this 	dismissal
(California Code of Regs., 	tit. 	8, 	sec. 	32635(a)). 	To be timely
filed, 	the 	original 	and 	five 	copies 	of 	such 	appeal 	must 	be
actually 	received 	by 	the 	Board 	itself 	before 	the 	close 	of
business 	(5:00 	p.m.) 	or 	sent 	by telegraph, 	certified 	or Express
United 	States 	mail 	postmarked 	no 	later 	than 	the 	last 	date 	set 	for
filing 	(California Code of Regs., 	tit. 	8, 	sec. 	32135). 	Code of
Civil 	Procedure 	section 	1013 	shall 	apply. 	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
copies 	of 	a 	statement 	in 	opposition within 	twenty 	calendar 	days
following 	the 	date 	of 	service 	of 	the 	appeal 	(California 	Code 	of
Regs., 	tit. 	8, 	sec. 	32635(b)).
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 	California 	Code 	of 	Regs., 	tit. 	8,
sec. 	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 	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 	(California 	Code 	of
Regs., 	tit. 	8, 	sec. 	32132).

Final 	Date
If 	no 	appeal 	is 	filed within 	the 	specified 	time 	limits, 	the
dismissal 	will 	become 	final 	when 	the 	time 	limits 	have 	expired
Sincerely,
JOHN W. 	SPITTLER
General 	Counsel
By .
Bernard 	McMonigle
Regional 	Attorney
Attachment
cc: 	Christopher W. 	Waddell
Chief 	Counsel
Department 	of 	Personnel 	Administration
Legal 	Division
1515 	"S" 	Street, 	North Building, 	Suite 400
Sacramento, 	CA 	95814-7243

STATE OF CALIFORNIA 	PETE WILSON, Governor
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
Headquarters Office
1031 18th Street
Sacramento, CA 	95814-4174
(916) 322-3088
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November 	13, 	1991
Mr. 	Stewart Weinberg, 	Attorney
Van Bourg, 	Weinberg, 	Roger & Rosenfeld
875 	Battery 	Street
San Francisco, 	CA 	94111
Re: 	International 	Union of Operating Engineers, 	Local 	39 v.
State 	of 	California 	(Department 	of 	Personnel 	Administration)
Unfair 	Practice 	Charge 	Case 	No. 	S-CE-532-S
PARTIAL 	WARNING 	LETTER
Dear Mr. 	Weinberg:
On October 	7, 	1991, 	the 	International Union of Operating
Engineers, 	Local 	39, 	filed 	the 	above-referenced 	charge alleging
violations of Government Code 	section 3519(b) 	and 	(c). 	In that
charge, 	you 	specifically 	alleged 	that 	the 	employer 	had 	violated
the 	Government 	Code 	by 	a 	failure 	to 	provide 	information 	and 	by
delivering the State's 	"last, 	best, 	and 	final" 	offer after the
Union 	had 	informed 	the 	State's 	negotiator 	that 	an unfair 	practice
complaint 	had 	issued 	regarding 	a 	prior 	failure 	to 	provide
information.1
In 	relevant part, 	your charge 	indicates 	the 	following:
On September 25, 	1991, 	Mr. 	Navarro announced
that he was 	delivering the 	State's 	last, 	best
and 	final 	offer 	to 	the 	Charging 	Party
relative 	to 	Unit 	13. 	The 	Union 	informed 	him
that on September 	24, 	1991 	a 	complaint had
issued 	regarding 	the 	failure 	to 	provide
information. 	Mr. 	Navarro nonetheless
presented 	the 	State's 	last, 	best 	and 	final
offer 	and 	indicated 	that 	an 	impasse 	existed.
Refusal 	to 	bargain 	cases 	are 	analyzed 	by 	the 	Public 	Employment
Relations 	Board 	(PERB) 	under both 	the 	"totality 	of 	conduct" 	test
1This warning 	letter 	does 	not 	address 	your 	allegation 	of 	a
failure 	to provide 	information.

and 	those 	cases 	where 	PERB 	finds 	that 	conduct 	by 	one 	party 	is 	a
"per 	se" 	violation. 	Pajaro Valley 	Unified 	School 	District 	(1978)
PERB Decision No. 	51. 	You 	allege that the making of 	a 	final
offer, 	after 	being 	informed 	that 	PERB 	had 	issued 	a 	complaint
based 	on 	failure 	to provide 	information, 	is 	a 	"per 	se" 	violation
of 	the 	obligation 	to bargain 	in good 	faith. 	As 	I 	indicated 	to
you 	briefly 	on November 	6, 	I 	am not 	aware 	of 	any 	case 	law to
support 	such 	a 	theory. 	To date, 	you have 	supplied 	no 	cases 	to
support 	such 	a 	theory. 	The 	issuance 	of 	a 	complaint 	does 	not 	mean
that 	the 	Dills Act 	has 	been violated. 	It 	is 	merely 	a 	conclusion
by 	a 	Board 	agent 	that 	enough 	facts 	have been alleged, 	that 	an
unfair practice 	may 	have 	been 	committed, 	that 	the 	matter 	should
proceed 	to 	a 	hearing 	before 	an Administrative 	Law Judge. 	It 	may
well 	then 	be 	found 	that 	there 	has 	been 	no 	violation 	of 	the Act
and 	the 	obligation to bargain 	in good 	faith. 	Accordingly, 	making
a 	final 	offer 	after a 	complaint has 	issued 	is 	not 	a 	"per 	se"
violation of 	the 	obligation to bargain. 	Nor 	is 	such 	conduct
indicia 	of 	bad 	faith under 	the 	"totality 	of 	conduct" 	test.
For 	these 	reasons, 	the 	allegation 	that 	the 	State 	made 	a 	final
offer after 	issuance of 	a complaint, 	as presently written, 	does
not 	state 	a 	prima 	facie 	case. 	If 	there 	are 	any 	factual
inaccuracies 	in 	this 	letter 	or 	any 	additional 	facts 	that 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 	must 	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
November 	20, 	1991, 	I 	shall dismiss 	the above-described allegation
from your 	charge. 	If you have 	any questions, 	please 	call 	me 	at
(916) 322-3198.
Sincerely,
Bernard 	McMonigle
Regional 	Attorney