State of California (Food and Agriculture) (PERB 1071S)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
INTERNATIONAL UNION OF OPERATING
ENGINEERS, 	LOCAL NO. 	12,
Charging 	Party,
v.
STATE 	OF 	CALIFORNIA 	(DEPARTMENT
OF FOOD AND AGRICULTURE) ,
Respondent.
Case No. 	LA-CE-295-S
PERB Decision No. 	1071-S
November 	30, 	1994
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Appearances: 	Richard G. 	Funderburg 	for International 	Union
of Operating Engineers, 	Local No. 	12; 	State of California
(Department of 	Personnel Administration) 	by Warren C. 	Stracener,
Labor Relations 	Counsel, 	for State 	of 	California 	(Department 	of
Food and Agriculture).
Before Blair, 	Chair; 	Caffrey and Garcia, 	Members.
DECISION
BLAIR, 	Chair: 	This 	case 	is before the Public Employment
Relations 	Board 	(PERB 	or Board) 	on appeal 	by the 	International
Union of Operating Engineers, 	Local No. 	12 	(IUOE) 	of a Board
agent's 	dismissal 	(attached hereto) 	of 	its unfair practice
charge. 	In its 	charge, 	IUOE alleges 	that 	the State of California
(Department 	of 	Food and Agriculture) 	(State) 	violated section
3519(b) 	and 	(c) 	of the Ralph C. 	Dills Act 	(Dills Act)1 by
1The Dills Act 	is 	codified at 	Government 	Code 	section 	3512
et seq. 	Section 3519 	states, 	in pertinent part:
It 	shall 	be unlawful 	for the 	state 	to do any
of 	the 	following:
(b) 	Deny to employee 	organizations 	rights
guaranteed 	to 	them by 	this 	chapter.
_____ )

insisting 	that 	IUOE 	deal 	with District Agricultural 	Association
Fair Managers 	at 	the 	second level 	of 	the 	grievance procedure.
The 	Board has 	reviewed 	the warning 	and dismissal 	letters,
IUOE's 	original 	and amended charge, 	IUOE's 	appeal 	and the 	State's
response 	thereto. 	The Board 	finds 	the warning and dismissal
letters 	to be 	free 	of prejudicial 	error and adopts 	them as 	the
decision of 	the Board 	itself.
DISCUSSION
IUOE appears 	to allege 	for 	the 	first 	time 	on appeal 	that 	the
State 	failed 	to provide 	requested 	information.
PERB Regulation 32635(b)2 states:
Unless good cause 	is 	shown, 	a charging party-
may not 	present 	on appeal 	new 	charge
allegations 	or new 	supporting 	evidence.
IUOE has 	failed 	to 	state why good 	cause exists 	to 	justify
presenting this new allegation on appeal. 	Therefore, 	the Board
declines 	to 	consider 	the 	new allegation.
ORDER
The unfair practice 	charge 	in Case No. 	LA-CE-295-S 	is 	hereby
DISMISSED WITHOUT 	LEAVE 	TO AMEND.
Members 	Caffrey and Garcia 	joined 	in 	this 	Decision.
(c) 	Refuse 	or fail 	to meet and confer in
good 	faith with 	a 	recognized 	employee
organization.
2PERB 	regulations 	are 	codified at 	California 	Code 	of
Regulations, 	title 8, 	section 31001 et seq.
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STATE OF CALIFORNIA 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Los Angeles Regional Office
3530 Wilshire Blvd., Suite 650
Los Angeles, CA 90010-2334
(213)736-3127
April 29, 	1994
Richard G. 	Funderburg
International 	Union 	of 	Operating
Engineers, 	Local Union No. 	12
150 	East 	Corson Street
Pasadena, 	California 	91103
Re: 	DISMISSAL AND REFUSAL TO 	ISSUE COMPLAINT, 	Unfair Practice
Charge No. 	LA-CE-295-S, 	International Union of Operating
Engineers. 	Local Union No. 	12 v. 	State of California
Dear Mr. 	Funderburg:
In the above-referenced charge, 	the 	International Union of
Operating Engineers, 	Local Union No. 	12 	(IUOE) 	alleges that the
State 	of 	California 	insisted 	that 	IUOE 	deal 	with District
Agricultural Association secretary-managers. 	This 	conduct 	is
alleged to violate Government 	Code sections 	3519(b) 	and 	(c) 	of
the Ralph C. 	Dills Act 	(Dills Act).
I 	indicated to you, 	in my attached letter dated April 	14, 	1994,
that 	the 	above-referenced 	charge 	did not 	state a prima 	facie
case. 	You were advised that, 	if 	there were any factual
inaccuracies 	or additional 	facts 	which would correct 	the
deficiencies 	explained 	in that 	letter, 	you should amend the
charge. 	You were 	further advised that, 	unless you amended the
charge 	to state a prima 	facie 	case 	or withdrew it prior to April
22, 	1994, 	the 	charge would be dismissed. 	I 	later extended that
deadline.
On April 	28, 	1994, 	I received from you a first amended charge.
This amended charge, 	unlike the original 	charge, 	does describe
specific State 	conduct. 	The amended charge, 	however, 	still 	does
not 	demonstrate 	how 	the 	State's 	conduct 	constituted a Dills Act
violation within PERB's 	jurisdiction. 	It 	is 	still not apparent
how the 	issue 	of 	the 	statutory authority 	of 	District Agricultural
Association 	secretary-managers 	under 	the 	Food and Agriculture
Code 	is 	within 	the 	scope 	of 	representation defined by Government
Code 	section 3516 	or is 	otherwise an issue under the Dills Act.
The 	only allegation 	that 	arguably states 	a Dills Act violation 	is
the 	allegation 	that 	the 	State 	unilaterally 	changed a grievance
policy. 	This 	same allegation was made 	in Unfair Practice Charge
No. 	LA-CE-292-S, 	which you filed on December 22, 	1993. 	I
indicated to you, 	in my attached letter dated March 4, 	1994, 	that
the 	allegation was 	subject 	to deferral 	to arbitration. 	I am
therefore dismissing the 	charge, 	based on the 	facts 	and reasons
contained in this 	letter and my March 4 	and April 	14 	letters.

LA-CE-295-S
April 29, 	1994
Page 	2
Right 	to Appeal
Pursuant 	to 	Public 	Employment 	Relations 	Board regulations, 	you
may obtain a 	review of 	this 	dismissal 	of 	the 	charge by 	filing
an appeal 	to 	the Board 	itself 	within twenty 	(20) 	calendar days
after service of this dismissal. 	(Cal. 	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 	p.m.) 	or sent by telegraph,
certified 	or 	Express 	United States 	mail 	postmarked no 	later
than the last date set for filing. 	(Cal. 	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 	(20) 	calendar
days 	following the date of 	service of 	the appeal. 	(Cal. 	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 Cal. 	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 	(3) 	calendar days before
the 	expiration 	of 	the 	time 	required 	for 	filing 	the document.
The request must 	indicate good cause 	for and, 	if known, 	the
position of 	each other party regarding the 	extension, 	and shall
be accompanied by proof 	of 	service 	of 	the 	request upon each
party. 	(Cal. 	Code of Regs., 	tit. 	8, 	sec. 	32132.)

LA-CE-295-S
April 29, 1994
Page 3
Final Date
If no appeal is filed within the specified time limits, 	the
dismissal will become final when the time limits have expired.
Sincerely,
ROBERT THOMPSON
Deputy General 	Counsel
By THOMAS J. ALLEN
Regional Attorney
Attachments
cc: 	Warren C. 	Stracener, Esq.
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STATE OF CALIFORNIA 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Los Angeles Regional Office
3530 Wilshire Blvd., Suite 650
Los Angeles, CA 90010-2334
(213)736-3127
April 14, 	1994
Richard G. 	Funderburg
International 	Union of 	Operating
Engineers, 	Local Union No. 	12
150 	East 	Corson Street
Pasadena, 	California 	91103
Re: 	WARNING LETTER, 	Unfair Practice Charge No. 	LA-CE-295-S,
International Union of Operating Engineers. 	Local Union
No. 	12 v. 	State of California
Dear Mr. 	Funderburg:
In 	the above-referenced charge, 	the 	International Union of
Operating Engineers, 	Local Union No. 	12 	(IUOE) 	alleges that the
State 	of 	California 	insisted that 	IUOE 	deal 	with District
Agricultural Association secretary-managers. 	This 	conduct 	is
alleged to violate Government Code sections 3519(b) 	and 	(c) 	of
the Ralph C. 	Dills Act 	(Dills Act).
My 	investigation 	of 	the 	charge 	reveals 	the 	following
relevant 	facts.
IUOE 	is 	the 	exclusive 	representative 	of a unit of 	State
employees, 	some 	of 	whom work for the Department 	of 	Food and
Agriculture. 	In its charge, 	IUOE alleges 	in part as 	follows:
The 	State 	of 	California 	through the actions 	of 	its
agents, 	the Department 	of 	Personnel Administration and
the Department 	of 	Food and Agriculture 	and 	its Division
of 	Fairs and Expositions, 	has 	insisted the
International 	Union of 	Operating Engineers 	deal 	with
District 	Agricultural Association 	secretary-managers,
who 	have 	no 	statutory authority 	[under 	the 	Food and
Agriculture Code] 	to act as agents 	of 	the State on
wages, 	hours, 	and other terms and conditions of
employment 	for 	civil 	service 	employees 	represented by
the 	I.U.O.E., 	as 	further set 	forth 	in the 	Factual
Statement 	of 	Charges.
By the aforementioned actions, 	the State of
California through the actions of 	its agents:
b) 	Interferes with and denies 	the 	I.U.O.E,
of 	its 	right 	to represent 	its members.
c) 	Refuses 	or 	fails 	to meet and confer 	in
good 	faith with 	the 	I.U.O.E.

LA-CE-295-S
April 14, 	1994
Page 2
The 	"Factual 	Statement 	of 	Charges" 	attached 	to the 	charge does
not 	in 	fact 	describe any specific 	conduct 	on any specific date by
any specific agent 	of 	the State. 	Moreover, 	the charge does not
demonstrate 	how 	the 	State actually denied 	IUOE 	its 	rights 	under
the Dills Acts, 	failed to meet and confer with IUOE, 	or otherwise
violated 	the 	Dills 	Act.
Based on the 	facts 	stated above, 	the 	charge does not 	state a
prima 	facie violation of 	the Dills Act, 	for the 	reasons 	that
follow.
PERB Regulation 	32615(a)(5) 	states 	that a 	charge 	shall
contain a 	"clear and 	concise 	statement 	of 	the 	facts 	and 	conduct
alleged 	to 	constitute 	an unfair practice." 	A charging party
should allege the 	"who, 	what, 	when, 	where and how" 	of an unfair
practice. 	(United Teachers-Los Angeles 	(Ragsdale) 	(1992) 	PERB
Decision No. 	944.) 	Legal 	conclusions are not enough. 	(Id.; 	see
also 	Charter Oak Unified School 	District 	(1991) 	PERB Decision
No. 	873, 	at p. 	12, 	fn. 6.)
The 	present 	charge 	does 	not 	contain a 	clear and 	concise
statement 	of 	any specific State 	conduct. 	Moreover, 	it does not
contain allegations 	supporting 	the 	legal 	conclusion 	that 	the
State violated 	the Dills Act.
For these 	reasons the 	charge, 	as presently written, 	does not
state 	a prima 	facie 	case. 	If 	there are any factual 	inaccuracies
in this 	letter 	or additional 	facts 	which would correct 	the
deficiencies 	explained above, 	please amend the charge. 	The
amended 	charge 	should be prepared 	on a 	standard 	PERB unfair
practice 	charge 	form, 	clearly labeled First Amended Charge,
contain all 	the 	facts and allegations you wish to make, 	and
be 	signed under penalty of perjury by the 	charging party. 	The
amended 	charge 	must 	be 	served 	on 	the 	respondent 	and 	the 	original
proof 	of 	service must be 	filed with PERB. 	If 	I do not 	receive an
amended charge or withdrawal 	from you before April 	22, 	1994, 	I
shall 	dismiss your charge. 	If you have any questions, 	please
call me at 	(213) 	736-3127.
Sincerely,
Thomas J. 	Allen
Regional 	Attorney
TJA:we
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STATE OF CALIFORNIA 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Los Angeles Regional Office
3530 Wilshire Blvd., Suite 650
Los Angeles, CA 90010-2334
(213)736-3127
March 4, 	1994
Richard G. 	Funderburg,
Business 	Representative
Int'l 	Union of 	Operating 	Engineers
150 	East 	Corson Street
Pasadena, 	California 	91103
Re: 	WARNING LETTER 	(DEFERRAL TO ARBITRATION), 	Unfair Practice
Charge No. 	LA-CE-292-S, 	International Union of Operating
Engineers. 	Local Union No. 	12 v. 	State of California
(Department 	of 	Food and Agriculture)
Dear Mr. 	Funderburg:
In the above-referenced charge, 	the 	International Union of
Operating Engineers, 	Local Union No. 	12 	(IUOE) 	alleges that the
State 	of 	California Department 	of 	Food and Agriculture 	(State)
unilaterally 	changed a grievance policy. 	This 	conduct 	is alleged
to violate Government Code sections 3519(a), 	(b) 	and 	(c) 	of the
Ralph C. 	Dills Act 	(Dills Act).
My 	investigation 	of 	the 	charge 	reveals 	the 	following 	relevant
facts.
IUOE 	and 	the 	State 	are parties 	to a 	collective bargaining
agreement for the term July 1, 	1992, 	through June 30, 	1995.
Article 	14 	(Grievance and Arbitration Procedure), 	Section 14.8
(Formal Grievance 	- 	Step 2 ) , 	provides in part as follows:
If 	the grievant 	is not 	satisfied with the
decision rendered pursuant 	to Step 	1, 	the
grievant may appeal 	the 	decision 	to a
designated 	supervisor 	or manager 	identified
by 	each 	department 	head as 	the 	second 	level
of appeal.
Article 14, 	Section 14.12 	(Formal Grievance - 	Step 5 ) , 	provides
for binding arbitration of 	grievances.
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LA-CE-292-S
March 4, 	1994
Page 2
On or about October 22, 	1993, 	the State 	informed IUOE that 	Fair
Managers 	of 	District Agricultural 	Associations 	were designated
for second level 	of 	review of grievances. 	IUOE alleges 	that 	this
represents 	a unilateral 	change 	of 	policy. 	IUOE's 	argument
appears 	to be 	that a 	Fair Manager 	is 	not 	a State 	employee 	and
therefore 	cannot 	be 	a 	"supervisor 	or manager" 	within 	the meaning
of Article 14, 	Section 14.8.1
Based on the 	facts 	stated above, 	the 	charge 	is 	subject 	to
deferral 	to arbitration and must be dismissed, 	for the 	reasons
that 	follow.
Government Code section 3514.5(a) 	of 	the Dills Act states, 	in
pertinent part, 	that PERB shall not:
Issue 	a 	complaint 	against 	conduct 	also
prohibited by 	the provisions 	of 	the
[collective bargaining 	agreement 	in 	effect]
between 	the parties 	until 	the 	grievance
machinery of 	the agreement, 	if 	it exists
and covers 	the matter at 	issue, 	has been
exhausted, 	either by settlement 	or binding
arbitration.
In Lake Elsinore School District 	(1987) 	PERB Decision No. 	646,
PERB held that 	section 3541.5(a) 	of 	the 	Educational 	Employment
Relations Act, 	which contains 	language 	identical 	to
section 3514.5(a) 	of 	the Dills Act, 	established a jurisdictional
rule 	requiring 	that 	a charge be dismissed and deferred 	if: 	(1)
the 	grievance machinery of 	the agreement 	covers 	the matter at
issue and culminates 	in binding arbitration; 	and, 	(2) 	the conduct
complained of 	in 	the unfair practice 	charge 	is prohibited by the
provisions 	of 	the agreement between the parties. 	PERB Regulation
32620(b)(5) 	(Cal. 	Code of Regs., 	tit. 	8, 	sec. 	32620(b)(5)) 	also
requires 	the 	investigating Board agent 	to dismiss a charge where
the 	allegations 	are 	properly deferred 	to binding 	arbitration.
These standards are met with respect 	to this 	case. 	First, 	the
grievance machinery of 	the agreement 	covers 	the dispute 	raised by
the unfair practice 	charge 	and 	culminates 	in binding arbitration.
Second, 	the conduct 	complained of 	in this 	charge, 	that 	the State
1This 	appears 	to be 	the 	only argument 	that 	could support 	an
alleged violation of 	the Dills Act. 	If 	a Fair Manager 	can be a
"supervisor or manager" 	within the meaning of Article 	14, 	Section
14.8, 	then the State's 	conduct would not 	represent a unilateral
change 	of 	policy and would not violate 	either 	the agreement 	or
the Dills Act.
. 	' (

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LA-CE-292-S
March 4, 	1994
Page 3
unilaterally 	changed a policy on 	second 	level 	review of
grievances, 	is arguably prohibited by Article 14, 	Section 14.8,
of 	the agreement.
Accordingly, 	this 	charge must be deferred to arbitration and
will 	be 	dismissed. 	Such dismissal 	is without 	prejudice 	to the
Charging 	Party's 	right, 	after arbitration, 	to seek a repugnancy
review by PERB 	of 	the arbitrator's 	decision under 	the Dry Creek
criteria. 	(See PERB Reg. 	32661 	[Cal. 	Code of Regs., 	tit. 	8,
sec. 	32661]; 	Los Angeles Unified School District 	(1982) 	PERB
Decision No. 	218; 	Dry Creek Joint 	Elementary School District
(1980) 	PERB Order No. Ad-81a.)
If 	there 	are 	any 	factual 	inaccuracies 	in this 	letter or any
additional 	facts 	which would 	require 	a 	different 	conclusion 	than
the one 	explained above, 	please amend the 	charge. 	The amended
charge 	should be 	prepared on a 	standard 	PERB unfair practice
charge 	form clearly labeled 	First 	Amended 	Charge, 	contain all
the 	facts 	and allegations you wish to make, 	and be 	signed under
penalty 	of 	perjury by the 	Charging 	Party. 	The amended 	charge
must 	be 	served 	on 	the Respondent 	and 	the 	original 	proof 	of
service 	filed with PERB. 	If 	I 	do not 	receive an amended 	charge
or withdrawal 	from you before March 11, 	1994, 	I shall dismiss
your 	charge without 	leave 	to amend. 	If you have 	any questions,
please call me at 	(213) 	736-3127.
Thomas J. 	Allen
Regional 	Attorney
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