State of California (Department of Corrections) (PERB 1101S)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA 	STATE 	EMPLOYEES
ASSOCIATION,
Charging 	Party,
v.
STATE 	OF 	CALIFORNIA 	(DEPARTMENT
OF 	CORRECTIONS),
Respondent.
)
)
) 	Case No. S-CE- 737- S
PERB Decision No. 	1101-S
May 	9, 	1995
)
)
)
. .
Appearance; 	Bill 	Kelly, 	Senior Labor Relations Representative,
for California 	State 	Employees Association.
Before Blair, 	Chair; 	Carlyle and Garcia, 	Members.
DECISION
BLAIR, 	Chair: 	This 	case is before the Public Employment
Relations 	Board 	(Board) 	on an appeal 	filed by the 	California
State 	Employees Association 	(CSEA) 	of 	a Board agent's 	dismissal
(attached) 	of 	its unfair practice charge. 	In its charge, 	CSEA
alleged 	that 	the 	State 	of 	California 	(Department 	of 	Corrections)
(State) 	violated section 3519(c) 	of the Ralph C. 	Dills Act 	(Dills
Act)1 when it refused to honor an April 	7, 	1993 	settlement
agreement pertaining 	to 	shift 	schedules 	for 	teachers 	at 	the
California State Prison, 	Solano.
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:
(c) 	Refuse or fail 	to meet and confer in
good 	faith with 	a 	recognized 	employee
organization.

The 	Board has 	reviewed the 	entire 	record 	in this 	case,
including 	the warning and dismissal 	letters, 	CSEA's 	original 	and
amended unfair practice 	charge, 	and 	its 	appeal.2 The Board 	finds
the warning and dismissal 	letters 	to be 	free of 	prejudicial 	error
and adopts 	them as 	the decision of 	the Board itself.
ORDER
The unfair practice 	charge 	in Case No. 	S-CE-737-S 	is hereby
DISMISSED WITHOUT 	LEAVE 	TO AMEND.
Members 	Carlyle 	and Garcia 	joined 	in 	this 	Decision.
20n April 	25, 	1995, 	the PERB appeals assistant 	rejected the
State's 	response 	to 	CSEA's 	appeal 	as untimely 	filed. 	On May 	1,
1995, 	the 	State 	filed an appeal 	of 	the 	rejection of 	its 	late
filed 	response with 	the 	Board 	claiming good 	cause 	exists 	to
excuse 	the 	late 	filing. 	In light 	of 	the Board's decision in
this 	case, 	the Board finds 	it unnecessary to consider the State's
appeal. 	Therefore, 	the Board hereby dismisses 	the State's 	appeal
of 	its 	late 	filed response.
22

STATE OF CALIFORNIA 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
1031 18th Street, Room 102
Sacramento, CA 95814-4174
(916) 322-3198
FERD
March 8, 	1995
Bill 	Kelly
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-737-S
DISMISSAL 	LETTER
Dear Mr. 	Kelly:
On January 23, 	1995, 	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
section 3519(c) 	of the Ralph C. 	Dills Act 	(Dills Act).
Specifically, 	you allege 	that 	the 	California State 	Prison, 	Solano
failed 	to 	comply with a 	settlement 	of 	a 	grievance which was
reached on February 6, 	1992. 	(Your charge alleges 	California
State 	Prison, 	Soledad, 	violated the law, 	but your accompanying
documentation and a 	follow-up 	telephone 	call 	clarified 	that 	the
charge was 	against 	the 	Solano 	facility.) 	You allege 	that 	on
January 13, 	1995, 	CDC refused to honor the agreement of April 	7,
1993, 	relating to the implementation of 	the February 6, 	1992
grievance 	settlement. 	The 	agreement pertains 	to 	shift 	schedules
for 	teachers 	at 	the 	Solano 	facility.
I 	indicated 	to you, 	in my attached letter dated February 	17,
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 28, 	1995, 	the charge would be dismissed.
On February 24, 	1995, 	you requested an extension of 	time 	to
submit 	an amendment 	to 	the 	charge 	to 	substantiate your 	claim that
the 	charge was 	timely filed. 	An extension of 	time was 	granted
until March 7, 	1995.
On March 7, 	1995, 	an amended charge was 	filed which contends 	that
you 	did not 	have 	definitive 	knowledge 	that 	CDC 	Solano was
refusing 	to 	comply with 	the 	1993 	settlement proposal 	until
I__ 	r,
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C
Dismissal 	Letter
S-CE-737-S
March 8, 	1995
Page 2
January 	13, 	1995. 	You contend that 	following your replacement 	of
CSEA staff 	representative Bob 	Losik, 	you were 	lead to believe
that 	CDC 	Solano was 	willing 	to 	further discuss 	the 	shift 	change
proposal 	from 	1993 	by 	telephone 	conversations 	and 	correspondence
from CDC. 	(I note 	that 	the 	correspondence you submitted to
support 	your 	charge, 	contains 	no 	reference 	from CDC Solano 	staff
of 	a 	change 	in position 	from that 	first 	expressed 	to 	CSEA staff
Gretchen Seagraves on June 3, 	1993, 	wherein Janet Waugh, 	CDC
Labor Relations 	Specialist, 	advised 	that 	the Warden denied 	the
recommendations 	of 	the 	1993 	settlement 	proposal.)
Section 3514.5(a) 	of 	the Dills Act 	states 	in pertinent part, 	that
PERB 	shall 	not:
Issue 	a 	complaint 	in 	respect 	of 	any 	charge based upon
an 	alleged unfair practice 	occurring more 	than 	six
months 	prior 	to 	the 	filing of 	the 	charge.
Generally, 	the 	charging party must 	file 	its 	charge within six
months 	from the 	point 	at 	which 	it 	knew or 	should have 	known about
the 	facts 	giving rise to the unfair practice. 	See The Regents 	of
the University of 	California 	(1983) 	PERB Dec. 	No. 	359-H and San
Dieguito Union High School District 	(1982) 	PERB Dec. 	No. 	194.
The 	date 	of 	the 	discovery 	is 	the 	date 	on which 	the 	conduct
constituting 	the 	unfair practice 	is 	discovered or 	could
reasonably have been discovered, 	not 	the 	date 	that 	the 	legal
significance 	of 	the 	conduct 	is 	discovered. 	See 	California State
Employees Association 	(Darzins) 	(1985) 	PERB Dec. 	No. 	546-S. 	Your
charge 	contends 	that 	the 	CDC never 	implemented the April 	7, 	1993
agreement 	at 	the 	Solano 	facility. 	You allege 	that 	on January 	13,
1995, 	CDC refused to honor the agreement. 	Likewise, 	on April 	8,
1993, 	CDC 	refused 	to 	comply with 	the 	agreement 	to adjust 	shifts
and eliminate 	double 	shifts. 	There 	is 	no 	information provided 	to
demonstrate 	why 	CSEA was 	not 	aware 	of 	the 	failure 	to 	comply with
the 	agreement. 	Because 	you have 	failed 	to demonstrate why CSEA
was not aware of 	the violation until January 13, 	1995, 	the charge
must 	be 	deemed 	to have 	been untimely 	filed.
Based on 	the 	facts 	and reasons 	expressed 	in my February 	17, 	1995,
letters 	and your 	failure 	to present 	additional 	evidence 	to
demonstrate 	that 	the 	charge was 	timely 	filed following 	the 	June
3, 	1993, 	Waugh letter to Seagraves, 	I am hereby dismissing your
charge.
Right 	to Appeal
Pursuant 	to 	Public 	Employment 	Relations 	Board 	regulations, 	you
may 	obtain a 	review of 	this 	dismissal 	of 	the 	charge by 	filing
(

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Dismissal 	Letter
S-CE-737-S
March 8, 	1995
Page 3
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.)
(

Dismissal 	Letter
S-CE-737-S
March 8, 	1995
Page 4
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	By Roger 	Smith
Board 	Agent
Attachment
cc: 	Charles D. 	Sakai, 	Legal Counsel
Roeftl

STATE OF CALIFORNIA 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
1031 18th Street, Room 102
Sacramento, CA 95814-4174
(916) 322-3198
February 17, 	1995
Bill 	Kelly
Senior 	Labor 	Relations 	Representative
California 	State 	Employees 	Association
1108 	0 	Street
Sacramento, 	CA 	95814
Re: 	WARNING LETTER
California State Employees Association v. 	State 	of
California 	(Department 	of 	Corrections)
Unfair 	Practice 	Charge 	No. 	S-CE-737-S
Dear Mr. 	Kelly:
On January 23, 	1995, 	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
section 3519(c) 	of the Ralph C. 	Dills Act 	(Dills Act).
Specifically, 	you allege 	that 	the 	California State 	Prison, 	Solano
failed 	to 	comply with a 	settlement 	of 	a 	grievance 	which was
reached on February 6, 	1992. 	(Your charge alleges 	California
State 	Prison, 	Soledad, 	violated the law, 	but your accompanying
documentation and a 	follow-up 	telephone 	call 	clarified 	that 	the
charge was 	against 	the 	Solano 	facility.) 	You allege 	that 	on
January 13, 	1995, 	CDC refused to honor the agreement of April 	7,
1993, 	relating to the 	implementation of 	the February 6, 	1992
grievance 	settlement. 	The agreement 	pertains 	to 	shift 	schedules
for 	teachers 	at 	the 	Solano 	facility.
Section 3514.5(a) 	of 	the Dills Act states 	in pertinent part, 	that
PERB 	shall 	not:
Issue 	a 	complaint 	in 	respect 	of 	any 	charge based upon
an 	alleged unfair practice 	occurring more 	than 	six
months prior to the 	filing of 	the 	charge.
Generally, 	the 	charging party must 	file 	its 	charge within six
months 	from the point 	at 	which 	it 	knew 	or 	should have 	known about
the 	facts giving rise to the unfair practice. 	See The Regents 	of
the University of 	California 	(1983) 	PERB Dec. 	No. 	359-H and San
Dieguito Union High School District 	(1982) 	PERB Dec. 	No. 	194.
The 	date 	of 	the discovery 	is 	the date 	on which the 	conduct
constituting 	the unfair practice 	is 	discovered or 	could
reasonably have been discovered, 	not 	the 	date 	that 	the 	legal
significance 	of 	the 	conduct 	is 	discovered. 	See 	California State
----Employees Association 	(Dargins) 	(1985) 	PERB Dec. 	No. 	546-S. 	Your
charge 	contends 	that 	the 	CDC never implemented the April 	7, 	1993
agreement 	at 	the Solano 	facility. 	You allege 	that 	on January 	13,
r 	(

C
WARNING 	LETTER
S-CE-737-S
February 17, 	1995
Page 	2
1995, 	CDC refused to honor the agreement. 	Likewise, 	on April 	8,
1993, 	CDC refused to 	comply with the agreement 	to adjust 	shifts
and 	eliminate 	double 	shifts. 	There 	is 	no 	information provided 	to
demonstrate 	why CSEA was 	not 	aware 	of 	the 	failure 	to 	comply with
the 	agreement. 	Because you have 	failed 	to demonstrate 	why 	CSEA
was not 	aware 	of 	the violation until 	January 13, 	1995, 	the 	charge
must 	be 	deemed 	to 	have 	been untimely 	filed.
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 28, 	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.	Sincerelv.
Roger	Roger 	Smith
Board 	Agent
RCS:cb
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