University of California, Lawrence Livermore National Laboratory (PERB 1119H)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
UNIVERSITY OF CALIFORNIA, 	LAWRENCE
LIVERMORE NATIONAL 	LABORATORY,
Charging 	Party,
v.
LLNL PROTECTIVE SERVICE OFFICERS
ASSOCIATION,
Respondent.
)
)
)
) 	Case No. 	SF-CO-43-H
PERB Decision No. 	1119-H
October 	4, 	1995
)
)
)
)
)
)
)
Appearances: 	Gabriela B. 	Odell, 	Attorney, 	for University of
California, 	Lawrence Livermore National Laboratory; 	Carroll,
Burdick and McDonough by Gary M. 	Messing, 	Attorney, 	for LLNL
Protective 	Service 	Officers 	Association.
Before Garcia, 	Johnson and Caffrey, 	Members.
DECISION AND 	ORDER
CAFFREY, 	Member: 	This 	case 	is before the Public Employment
Relations 	Board 	(Board) 	on an appeal 	of 	a Board agent's 	dismissal
(attached) 	of 	an unfair practice 	charge 	filed by the University
of 	California, 	Lawrence Livermore National 	Laboratory
(Laboratory). 	In its charge, 	the Laboratory alleged that the
LLNL 	Protective 	Service Officers Association 	(Association) 	failed
to bargain in good faith in violation of 	section 3571.l(c) 	of 	the
Higher Education Employer-Employee 	Relations Act 	(HEERA)1 by
`1HEERA	HEERA 	is 	codified at Government 	Code 	section 3560 	et 	seq,
Section 3571.1 states, 	in pertinent part:
It 	shall 	be unlawful 	for an employee
organization to:
(c) 	Refuse or fail 	to engage 	in meeting and
conferring with 	the 	higher 	education
employer.

failing 	to meet 	at 	reasonable 	times 	and endeavor 	to 	reach
agreement 	on matters within the 	scope 	of 	representation.
The Board has 	reviewed 	the 	entire 	record 	in this 	case,
including 	the warning and dismissal 	letters, 	the unfair practice
charge, 	the Laboratory's 	appeal 	and the Association'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.
The unfair practice 	charge 	in Case No. 	SF-CO-43-H is 	hereby
DISMISSED WITHOUT LEAVE 	TO AMEND.
Members Garcia and Johnson joined in this Decision.
2
2

STATE OF CALIFORNIA 	PETE WILSON. Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
C.PERa
Sacramento Regional Office
1031 18th Street, Room 102
Sacramento, CA 95814-4174
(916) 322-3198
July 18, 	1995
Gabriela B. 	Odell, 	Assistant 	Laboratory Counsel
Lawrence 	Livermore 	National 	Laboratory
P.O. 	Box 808, 	Mail 	Stop L-701
Livermore, 	CA 	94551-9900
Re: 	NOTICE 	OF DISMISSAL AND 	REFUSAL TO 	ISSUE COMPLAINT
University 	of 	California, 	Lawrence 	Livermore National
Laboratory v. 	LLNL 	Protective 	Service 	Officers 	Association
Unfair Practice Charge No. 	SF-CO-43-H
Dear Ms. Odell:
I 	indicated to you, 	in my attached letter dated June 	16, 	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 June
26, 	1995, 	the charge would be dismissed.
Your 	subsequent 	request 	for an 	extension 	of 	time 	in which 	to
respond was granted, 	with a new deadline of July 14, 	1995.
I 	have 	not 	received 	either an amended 	charge 	or a 	request 	for
withdrawal. 	By letter dated July 14, 	1995, 	you submitted
additional 	argument 	urging 	that 	a 	complaint 	be 	issued 	in 	this
matter. 	Your letter noted 	that 	there were no 	factual
inaccuracies 	in my June 	16, 	1995 	letter, 	and further stated that
you 	did not wish to amend the 	charge.
Your letter 	cites 	two decisions 	in support 	of your belief 	that 	a
complaint 	should 	issue 	in 	this 	matter. 	You rely on Oakland
Unified School District 	(1983) 	PERB Dec. 	No. 	326, 	and an
Administrative 	Law Judge's 	Proposed Decision 	in Grenada
Elementary School District 	(1984) 	8 	PERC 15133. 	Neither
decision, 	however, 	supports 	the conclusion which you urge. 	In
both cases, 	a party's 	failure 	to agree 	to more 	frequent meeting
times 	was 	but 	one 	of 	the 	factors 	considered 	in 	finding 	that 	the
respondent 	had engaged 	in surface bargaining. 	Even if 	the
charging party's 	conduct 	here 	regarding meeting 	frequency 	is
considered evidence 	of 	surface 	bargaining, 	that 	finding alone 	is
not 	sufficient 	to 	find a prima 	facie violation based 	on 	the
totality of 	conduct 	alleged by your 	charge. 	Therefore, 	I 	am
dismissing 	the 	charge 	for the 	reasons 	set 	forth above, 	as well 	as
the 	facts 	and reasons 	contained 	in my June 	16, 	1995 	letter.
\

C
Dismissal 	Letter
SF-C0-43-H
July 18, 	1995
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.)
( 	(

C
Dismissal 	Letter
SF-C0-43-H
July 18, 	1995
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
- n
Les 	Chisholm
Regional 	Director
Attachment
cc: 	Robert 	Perko
Gary 	Messing
I 	(
- 	/'I

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
June 16, 	1995
Robert 	Perko, 	Division Leader, 	Staff Relations
Lawrence 	Livermore 	National 	Laboratory
7000 	East Avenue, 	L-708
Livermore, 	CA 	94550
Re: 	WARNING LETTER
Regents 	of 	the 	University 	of 	California 	(Lawrence 	Livermore
National 	Laboratory) 	v. 	Protective Service Officers
Association
Unfair Practice Charge No. 	SF-CO-43-H
Dear Mr. 	Perko:
The 	above-referenced 	charge 	was 	filed with 	the 	Public 	Employment
Relations Board 	(PERB or Board) 	on May 10, 	1995. 	In its 	charge,
the 	Regents 	of 	the University of 	California, 	Lawrence 	Livermore
National 	Laboratory 	(Employer) 	alleges 	that 	the 	Protective
Service 	Officers Association 	(Association) 	has 	failed 	to bargain
in good 	faith 	in violation of Government 	Code 	Section 3571.1 	(c)
by 	failing 	to meet 	at 	reasonable 	times 	and 	endeavor 	to 	reach
agreement 	on matters 	within 	the 	scope 	of 	representation.
The Association was 	certified by 	PERB 	as 	the 	exclusive
representative 	for a unit 	of 	Protective 	Service 	Officers 	(PSOs)
on March 4, 	1994. 	The Association and the 	Employer have not yet
reached 	agreement 	on a memorandum of 	understanding.
The Association submitted its 	initial proposals, 	pursuant 	to
Government Code Section 3595, 	on July 28, 	1994. 	These proposals
were publicly noticed on August 	24, 	1994. 	The 	Employer's 	initial
proposals were publicly noticed on September 14, 	1994. 	The 	first
meeting between the parties was held on November 10, 	19 94
following a request by the Association made on November 	1, 	1994.
At 	this 	first meeting, 	the parties met 	for just 	over 	four hours.
No 	contract proposals 	were 	exchanged at 	the meeting, 	but 	the
parties 	did 	reach agreement 	on ground 	rules 	for 	their
negotiations.
At 	this 	first 	meeting 	the parties 	also 	discussed 	the
Association's 	concerns 	regarding 	alleged unilateral 	changes 	made
by 	the 	Employer, 	and the Association stated that 	it 	did not 	wish
to 	schedule 	another meeting until 	it 	had 	received a written
response 	to 	correspondence 	regarding 	those 	alleged 	changes.
The 	Employer sent 	its 	response on November 28, 	1995. 	The
Association next 	contacted the Employer on December 14, 	1994, 	and
(

Warning 	Letter
SF-C0-43-H
June 16, 	1995
Page 2
suggested 	that 	the 	parties 	not 	meet 	again until 	after 	the
holidays, 	on January 5, 	1995.
The 	January 	5, 	1995 	meeting also 	lasted 	just 	over 	four hours.
Again, 	no proposals were 	exchanged, 	and 	the meeting was 	devoted
in 	large part 	to 	the 	discussion 	of 	alleged unilateral 	changes
made by 	the 	Employer, 	including a 	change 	in staffing 	for 	the
Superblock which was 	announced 	on 	that 	same 	date.
The parties next met on February 13, 	1995, 	despite efforts by 	the
Employer 	to 	schedule an earlier meeting. 	The 	February 	13 	session
lasted 	just 	under 	four hours. 	The Association did present
contract proposals 	at 	this meeting, 	but 	again discussion 	centered
on alleged unilateral 	changes 	by 	the 	Employer.
The parties 	next met 	on March 9, 	1995. 	That meeting lasted 	in
excess 	of 	four hours. 	Both parties 	exchanged written proposals.
However, 	the Association stated at 	the meeting 	that 	it 	would be
"redoing" 	its proposals 	in response 	to 	the 	Employer's proposals.
The 	Association's 	negotiator 	indicated 	that 	his 	vacation 	schedule
would preclude 	further meetings 	until 	at 	least 	after April 	10,
1995. 	The 	Employer agreed to 	contact 	the Association 	on April
10, 	1995 	to schedule another meeting, 	and advised the Association
that 	it 	would 	submit 	the balance 	of 	its 	proposals 	by mail 	prior
to 	the 	next meeting.
On April 	18, 	the 	Employer submitted the balance 	of 	its 	proposals,
but 	did not 	hear 	from the Association until April 	28. 	The
Employer again urged 	the Association 	to 	speed up 	the 	pace 	of
negotiations 	and 	requested 	three bargaining 	sessions 	in May. 	The
Association agreed to two dates, 	May 23 	and 24, 	and those
sessions 	were 	held.
The parties 	also met 	on June 	8, 	and despite 	the 	Employer's
request 	for the 	scheduling of 	two meetings per week, 	the parties
have 	reached agreement 	only on 	the dates 	of June 	22 	and July 	12
and 13.
Discussion
Government 	Code 	Section 	3570 	requires 	higher 	education 	employers
to 	engage 	in meeting and 	conferring with 	an employee 	organization
selected as 	exclusive 	representative 	of 	an appropriate 	unit 	on
matters within 	the 	scope 	of 	representation, 	and an exclusive
representative 	commits 	an unlawful practice, 	pursuant 	to
Government 	Code Section 3571.1, 	when it 	refuses 	or fails 	to
engage 	in meeting 	and 	conferring with 	the 	higher 	education
employer.
(

Warning 	Letter
SF-CO-43-H
June 16, 	1995
Page 3
The 	standard 	generally applied 	to 	determine 	whether 	good 	faith
negotiations 	have 	occurred 	is 	called 	the 	"totality of 	conduct"
test. 	This 	test 	reviews 	the 	entire 	course 	of 	conduct 	during
negotiations 	to 	determine whether 	the parties 	have 	negotiated 	in
good 	faith with 	the 	"requisite 	subjective 	intention 	of 	reaching
an agreement." 	(Pajaro Valley Unified School 	District 	(1978) 	PERB
Dec. 	No. 	51.). 	There are also certain acts which have such a
potential 	to 	frustrate 	negotiations 	that 	they are 	held unlawful
without 	a determination of 	subjective 	good 	faith. 	For 	example,
the 	insistence 	to 	impasse 	on a 	nonmandatory subject 	of 	bargaining
constitutes 	a 	"per se" 	violation of 	the duty to bargain 	in good
faith. 	(Lake Elsinore School District 	(1986) 	PERB Dec. 	No. 	603.)
In Gonzales 	Union High 	School 	District 	Teachers 	Association.
CTA/NEA 	(1985) 	PERB Dec. 	No. 	480, 	the Board found violations
based on an 	exclusive 	representative's 	refusal 	to meet 	with 	the
Employer 	for more 	than a 	three month period, 	and by 	its 	refusal
to bargain 	over 	certain mandatory 	subjects 	of 	bargaining.
However, 	the 	Board rejected 	the 	Employer's 	argument 	that 	these
factors 	in 	combination 	with 	other 	complained-of 	conduct 	evidenced
the 	exclusive 	representative's 	failure 	to bargain with 	"requisite
good 	faith." 	(Id.)
The 	Employer argues 	that 	the pace 	of 	negotiations 	here 	is
inadequate because 	of 	the possible 	spending 	cuts 	which 	require
decisions 	for which 	the 	parameters 	established by a 	collective
bargaining agreement would be 	of 	assistance. 	Neither 	the 	statute
nor 	PERB case 	law establishes 	a 	timeline 	for negotiations, 	and
the pace of parties' 	efforts vary widely. 	The pace 	of 	an
individual 	set 	of 	negotiations 	is 	influenced by many 	factors,
including 	the 	conduct of both parties 	to 	the negotiations. 	(See,
for example, 	the Board's 	discussion of 	the 	charging party's
conduct 	in Gonzales. 	Likewise, 	here, 	it 	is noteworthy that the
Employer did not 	complete 	its 	submission 	of proposals 	until 	April
18, 	1995 while 	insisting that 	it was 	ready to bargain as 	early as
September 	1994.)
The 	Employer also 	references 	a 	"large 	number" 	of 	negotiable
subjects 	that 	remain to be 	resolved, 	but 	fails 	to allege
specifically what 	subjects 	have been 	covered 	in negotiations, 	on
what 	subjects 	tentative agreements 	have been reached, 	and what
subjects 	remain unsettled at 	the 	table.
The 	facts 	of 	this 	case, 	like 	those 	in Gonzales Union High School
District Teachers Association. 	CTA/NEA, 	supra. 	and Professional
Engineers in California Government 	(1991) 	PERB Dec. 	No. 	9 00-S,
fail 	to demonstrate 	that 	the Association's 	"totality 	of 	conduct"
evidences 	the 	lack of 	a 	subjective 	intent 	to reach agreement.
(

Warning 	Letter
SF-C0-43-H
June 16, 	1995
Page 	4
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 June 26. 	199 5, 	I
shall 	dismiss your charge. 	If you have any questions, 	please
call me at 	(916) 	322-3198, 	extension 359.
Sincerely,
Les 	Chisholm
Regional 	Director
HLC:cb
cc: 	Gabriela B. 	Odell
(