State of California (Department of Corrections) (PERB 1096S)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA 	STATE 	EMPLOYEES
ASSOCIATION, 	SEIU LOCAL 1000,
Charging 	Party,
v.
STATE 	OF 	CALIFORNIA 	(DEPARTMENT
OF 	CORRECTIONS),
Respondent.
)
)
) 	Case No. S-CE- 732 -S
PERB Decision No. 	1096-S
May 3, 1995
)
)
)
Appearances: 	California State 	Employees Association by Howard
Schwartz, 	Attorney, 	for California State Employees Association,
SEIU Local 	1000; 	State of 	California 	(Department 	of 	Personnel
Administration) 	by Charles D. 	Sakai, 	Attorney, 	for State of
California 	(Department of Corrections).
Before Blair, 	Chair; 	Carlyle and Johnson, 	Members.
DECISION
JOHNSON, 	Member: 	This 	case is before the Public Employment
Relations 	Board 	(PERB or Board) 	on an appeal 	filed by the
California State Employees Association, 	SEIU Local 	1000 	(CSEA) 	of
a Board agent's 	dismissal 	(attached hereto) 	of 	CSEA's 	unfair
practice 	charge. 	The 	charge 	alleged that 	the 	State 	of 	California
(Department of Corrections) 	(CDC) 	violated section 3519.5(b) 	and
(c) 	of the Ralph C. 	Dills Act 	(Dills Act)1 when it unilaterally
1The Dills Act 	is 	codified at 	Government 	Code 	section 3512
et 	seq. 	Section 3519.5 	states, 	in pertinent part:
It 	shall 	be unlawful 	for an employee
organization to:
(b) 	Impose or threaten to 	impose 	reprisals
on employees, 	to discriminate or threaten to
discriminate against 	employees, 	or otherwise
to interfere with, 	restrain, 	or coerce

assigned 	the 	duties 	of 	the 	Supervising Cook 	I 	(SCI)
classification 	to 	correctional 	officers 	at 	its 	California 	State
Prison, Sacramento.
The 	Board has 	reviewed 	the Board agent's 	warning and
dismissal letters, 	CSEA's unfair practice charge, 	its February 7,
1995 	response 	to the warning letter, 	its appeal 	and CDC's
response 	to CSEA's appeal. 	The Board finds 	the warning and
dismissal 	letters 	to be 	free 	of prejudicial 	error and adopts 	them
as 	the decision of 	the Board 	itself 	deferring 	this matter to
arbitration.2
employees because 	of 	their exercise 	of 	rights
guaranteed by 	this 	chapter.
(c) 	Refuse or fail 	to meet and confer in
good 	faith with a 	state agency employer of
any of 	the employees 	of which it 	is 	the
recognized 	employee 	organization.
2Article 22.1(b) 	of the parties' 	collective bargaining
agreement 	(CBA) 	requires 	that 	if 	the 	conduct 	complained of 	in
this 	charge 	(CSEA's 	assertion 	that 	CDC unilaterally 	transferred
duties 	from SCI 	classifications 	that 	are 	in the bargaining unit
to correctional 	officers 	in Unit 	6 without negotiating) 	is
subject 	to subsection 	(b) 	and there 	is a disagreement 	on that
point, 	then any disagreement as 	to whether subsection 	(b)
requires 	the parties 	to meet 	and 	confer must be 	submitted 	to 	the
arbitration procedure 	for 	resolution.
If, 	as 	CSEA alleges, 	CDC did in fact make changes 	in areas
within the scope of negotiations 	(transfers), 	then it 	is 	for the
arbitrator 	to 	decide whether 	the parties 	are 	required 	to meet 	and
confer over the 	impact of 	the decision. 	Accordingly, 	PERB will
not 	rule 	on the merits of 	this 	case, 	but has 	investigated the
initial 	procedural 	aspects 	of 	this 	case and 	finds 	that 	the
procedural 	question is 	covered by Article 22.1(b) 	of 	the parties'
CBA and must 	defer 	this matter 	to 	the 	arbitration procedure 	for
resolution.
22

ORDER
The unfair practice charge in Case No. 	S-CE-732-S is hereby
DISMISSED WITHOUT LEAVE TO AMEND.
Chair Blair and Member Carlyle joined in this Decision.
w
	3

STATE OF CALIFORNIA 	(. 	C 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
1031 18th Street, Room 102
Sacramento, CA 95814-4174
(916) 322-3198
February 9, 	1995
Robert J. 	Losik
Senior 	Labor 	Relations 	Representative
California 	State 	Employees 	Association
1108 	0 	Street
Sacramento, 	CA 	95814
Re: 	California State Employees Association v. 	State of
California 	(Department 	of 	Corrections)
Unfair 	Practice 	Charge No. 	S-CE-732-S
DISMISSAL 	LETTER
Dear Mr. 	Losik:
On December 16, 	1994, 	you filed a charge on behalf of 	California
State Employees Association 	(CSEA) 	in which you allege 	that 	the
State of California, 	Department of Corrections 	(CDC) 	violated
sections 	3519(b) 	and 	(c) 	of the Government Code. 	More
specifically, 	you 	contend that 	CDC has 	assigned 	the duties 	of 	the
Supervising 	Cook 	I 	(SCI) 	classification to 	correctional 	officers
at 	its 	California State 	Prison 	- 	Sacramento facility. 	The 	SCI
classification 	is 	assigned to Unit 	15 	which is 	represented by
CSEA. 	Correctional 	Officers are 	in Unit 	6, 	represented by
California 	Correctional 	Peace Officers Association. 	This
misassignment 	of 	duties you 	contend 	is 	a unilateral 	transfer of
bargaining 	unit 	work.
During 	the 	course 	of 	the 	investigation of 	this 	charge 	I 	learned
that 	you became 	aware 	of 	the use of 	correctional 	officers 	in the
satellite 	kitchens 	at 	California State 	Prison 	- 	Sacramento when
you had a walk-through of 	the 	facility in May, 	1994. 	You
inquired of the use of SCIs by CDC and in June, 	1994, 	CDC
responded with a brief 	denial 	of 	any misassignment. 	In August,
1994, 	you had some 	discussions with CDC regarding the use 	of 	SCIs
at 	the 	satellite kitchens but 	no agreement was 	reached. 	Your
filing 	of 	the 	charge 	reflects 	the 	fact 	that no agreement with CDC
has 	been 	reached.
I 	indicated to you, 	in my attached letter dated January 25, 	1995,
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
February 	6, 	1995, 	the 	charge would be dismissed.

Dismissal 	Letter
S-CE-732-S
February 9, 	1995
Page 2
On February 	6, 	1995, 	I granted a 	request 	for an extension of 	time
for the 	submission of 	a response 	to my January 25, 	1995 	letter.
On February 7, 	1995, 	I 	received neither an amended charge nor a
request 	for withdrawal but 	rather, 	I 	received additional 	legal
argument. 	You argue that 	the language of Article 22.1(b) 	was not
intended 	to be 	a 	clear and unmistakable 	waiver of 	CSEA's 	right 	to
negotiate 	the decision to alter 	terms 	and 	conditions 	of
employment, 	i.e. 	assignment 	of 	duties. 	You continue by arguing
that 	PERB 	should 	resolve 	this 	question 	(the applicability 	of
Article 	22.l(b)) 	through an evidentiary hearing.
As 	recited in my January 25, 	1995 	letter, 	Article 22.1(b) 	states
"the parties 	recognize 	that 	it may be 	necessary 	for the 	State 	to
make 	changes 	in area within the 	scope 	of 	negotiations." 	This
Article 	continues 	by 	establishing 	a procedure 	by which 	the 	State
may make 	those 	changes. 	This 	language provides a mechanism, 	which
ends 	in binding arbitration, 	to 	resolve disputes 	such as 	the 	one
raised by 	this 	charge 	and 	therefore 	this 	charge must 	be 	deferred
and 	dismissed based 	on 	the 	facts 	and 	reasons 	contained 	in my
January 25, 	1995 letter.
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"
( 	(

Dismissal 	Letter
S-CE-732-S
February 9, 	1995
Page 	3
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.)
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 Roger 	Smith
Board 	Agent
Attachment
cc: 	Charles D. 	Sakai, 	Legal Counsel
I 	(

STATE OF CALIFORNIA 	r 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
1031 18th Street, Room 102
Sacramento, CA 95814-4174
(916) 322-3198
January 25, 	1995
Robert J. 	Losik, 	Sr. 	Labor Relations Representative
California 	State 	Employees 	Association
1108 	0 Street
Sacramento, 	CA 	95814
Re: 	California State 	Employees Association v. 	State 	of
California 	(Department 	of 	Corrections)
Unfair 	Practice 	Charge 	No. 	S-CE-732-S
WARNING 	LETTER
Dear Mr. 	Losik:
On December 16, 	1994, 	you filed a charge on behalf of 	California
State 	Employees Association 	(CSEA) 	in which you allege 	that 	the
State of California, 	Department 	of 	Corrections 	(CDC) 	violated
sections 3519(b) 	and 	(c) 	of 	the Government Code. 	More
specifically, 	you 	contend that 	CDC has 	assigned the duties 	of 	the
Supervising Cook I 	(SCI) 	classification to correctional 	officers
at 	its 	California State 	Prison 	- 	Sacramento facility. 	The 	SCI
classification 	is 	assigned 	to Unit 	15 	which is 	represented by
CSEA. 	Correctional 	Officers 	are 	in Unit 	6, 	represented by
California 	Correctional 	Peace 	Officers Association. 	This
misassignment 	of 	duties you 	contend 	is 	a unilateral 	transfer 	of
bargaining 	unit 	work.
During 	the 	course 	of 	the 	investigation 	of 	this 	charge 	I 	learned
that 	you became aware 	of 	the use 	of 	correctional 	officers 	in 	the
satellite kitchens 	at 	California State 	Prison 	- 	Sacramento when
you had a walk-through of 	the 	facility 	in May, 	1994. 	You
inquired of 	the use of SCIs by CDC and in June, 	1994, 	CDC
responded with a brief 	denial 	of 	any misassignment. 	In August,
1994, 	you had some discussions with CDC regarding the use 	of 	SCIs
at 	the 	satellite kitchens 	but 	no agreement 	was 	reached. 	Your
filing 	of 	the 	charge 	reflects 	the 	fact 	that no agreement with CDC
has 	been 	reached.
Section 3514.5(a) 	of the Ralph C. 	Dills Act 	(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
/ 	r

Warning 	Letter
January 	25, 	1995
S-CE-732-S
Page 	2
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/MOU 	covers 	the 	dispute
raised 	by 	the 	unfair 	practice 	charge 	and 	culminates 	in 	binding
arbitration. 	Second, 	the 	conduct 	complained 	of 	in 	this 	charge
that 	CDC 	unilaterally 	transferred 	duties 	from 	SCI 	classifications
that 	are 	in 	the 	unit 	to 	correctional 	officers 	in Unit 	6 	without
negotiating 	is 	arguably 	prohibited 	by Article 	22.1(b) 	of 	the
MOU.1
1 Article 22.1(b) 	provides:
b. 	The 	parties 	agree 	that 	the 	provisions 	of 	the 	Subsection
shall 	apply 	only 	to 	matters 	which are 	not 	covered 	in
this 	Contract.
The 	parties 	recognize 	that 	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 	the 	Union 	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 	15,
when 	all 	three 	of 	the 	following 	exists:
(1) 	Where 	such 	changes 	would 	affect 	the 	working
conditions 	of 	a 	significant 	number 	of 	employees 	in
Unit 	15.
(2) 	Where 	the 	subject 	matter 	of 	change 	is 	within 	the
scope 	of 	representation 	pursuant 	to 	the 	Ralph 	C.
Dills 	Act.
(

C
Warning 	Letter
January 25, 	1995
S-CE-732-S
Page 3
(3) 	Where the Union requests 	to negotiate with the
State.
An 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.
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 	February 6, 	1995, 	I 	shall 	dismiss
your 	charge without 	leave 	to amend. 	If 	you have any questions,
please call me at 	(916) 	322-3198 ext. 	358.
Sincerely,
Rogt Roger Smith
Board 	Agent
RCS:cb