State of California (Department of Corrections) (PERB 1204S)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA STATE 	EMPLOYEES
ASSOCIATION,
Charging 	Party,
v.
STATE OF CALIFORNIA 	(DEPARTMENT
OF 	CORRECTIONS),
Respondent.
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) 	Case No. 	SA-CE-926-S
PERB Decision No. 	1204-S
June 	18, 	1997
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Appearance; 	Bill Kelly, 	Senior Labor Relations Representative,
for California State 	Employees Association.
Before Caffrey, 	Chairman; 	Johnson and Dyer, 	Members.
DECISION AND 	ORDER
DYER, 	Member: 	This case is before the Public Employment
Relations Board 	(Board) 	on appeal by the California State
Employees Association 	(Association) 	to a Board agent's dismissal
(attached) 	of 	the unfair practice 	charge and refusal 	to 	issue a
complaint. 	The Association requested repugnancy review of 	an
arbitrator's award in a previous 	case 	(SA-CE-734-S) 	pursuant 	to
section 3514.5(a) 	of the Ralph C. 	Dills Act 	(Dills Act).1
1The Dills Act 	is 	codified at Government 	Code 	section 	3512
et seq. 	Section 3514.5(a) 	states, 	in pertinent part:
(2) 	. 	. 	. The board shall have discretionary
jurisdiction to 	review such 	settlement 	or
arbitration award reached pursuant 	to 	the
grievance machinery 	solely 	for 	the purpose 	of
determining whether it 	is 	repugnant 	to the
purposes 	of 	this 	chapter. 	If 	the board finds
that 	such 	settlement 	or arbitration award 	is
repugnant to the purposes of 	this 	chapter, 	it
shall 	issue a complaint 	on the basis 	of a
timely filed charge, 	and hear and decide 	the
case on the merits; 	otherwise, 	it shall
dismiss 	the 	charge.

The Board has 	reviewed the 	entire 	record 	in this 	case,
including the Board agent's warning and dismissal 	letters, 	the
unfair practice 	charge and 	the Association'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.
The unfair practice charge 	in Case No. 	SA-CE-926-S 	is hereby
DISMISSED WITHOUT LEAVE 	TO AMEND.
Chairman 	Caffrey and Member Johnson 	joined 	in 	this 	Decision.
2
.,

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
PERS
January 31, 	1997
Bill 	Kelly, 	Senior Labor Relations
Representative
California 	State 	Employees 	Association
1108 "0" Street
Sacramento, 	CA 95814
Re: 	NOTICE OF DISMISSAL AND REFUSAL TO 	ISSUE 	COMPLAINT
California 	State 	Employees Association v. 	State 	of
California 	(Department 	of 	Corrections)
Unfair Practice 	Charge No. 	SA-CE-926-S
Dear Mr. 	Kelly:
I 	indicated to you, 	in my attached letter dated January 23, 	1997,
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
January 30, 	1997, 	the charge would be dismissed.
I 	have 	not 	received either an amended charge 	or 	a 	request 	for
withdrawal. 	You confirmed by telephone on January 31, 	1997 	that
the charge was not being amended or withdrawn. 	Therefore, 	I 	am
dismissing the 	charge 	based on 	the 	facts 	and reasons 	contained 	in
my January 23, 	1997 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
( ~~

Dismissal 	Letter
SA-CE-926-S
January 31, 	1997
Page 	2
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.)
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 .
Les 	Chisholm
Regional 	Director
Attachment
cc: 	Robert K. 	Roskoph

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
PERO
January 23, 	1997
Bill 	Kelly
Senior Labor 	Relations 	Representative
California 	State 	Employees 	Association
1108 "0" Street
Sacramento, 	CA 95814
Re: 	WARNING LETTER
Unfair Practice 	Charge No. 	SA-CE-926-S
California State Employees Association v. 	State of
California 	(Department 	of 	Corrections)
Dear Mr. 	Kelly:
The above-referenced charge, 	filed on September 16, 	1996, 	seeks
review by the 	Public 	Employment 	Relations 	Board 	(PERB 	or Board)
of 	a grievance 	arbitration award 	for the 	purpose 	of 	determining
whether the 	award is 	repugnant 	to 	the purposes 	of 	the Ralph C.
Dills Act 	(Dills A c t ) 1
Background
The 	California 	State 	Employees 	Association 	(CSEA or 	Charging
Party) 	represents, 	inter alia, 	State Bargaining Unit 3, 	which
includes 	employees 	employed by 	the 	State 	of 	California,
Department of Corrections 	(Department or State). 	In an earlier
charge 	(S-CE-734-S, 	filed January 10, 	1995), 	CSEA alleged the
Department violated Dills Act 	sections 	3519 (c) 	and 	(b) 	by
unilaterally 	increasing 	teacher-inmate 	contact 	time 	by one-half
hour at 	several 	work 	locations. 	That 	charge was 	dismissed and
deferred 	to 	arbitration based on 	findings 	that 	the 	complained-of
1The Dills Act 	is 	codified 	at 	Government 	Code 	section 	3512
et 	seq. 	Section 3514.5 provides 	in pertinent part 	as 	follows:
[PERB] 	shall have discretionary jurisdiction
to 	review 	such 	settlement 	or 	arbitration
award 	reached pursuant 	to 	the 	grievance
machinery 	solely 	for 	the 	purpose 	of
determining whether 	it 	is 	repugnant 	to 	the
purposes of 	this chapter. 	If 	the board finds
that 	such 	settlement 	or arbitration award 	is
repugnant 	to the purposes of this chapter, 	it
shall 	issue a complaint on the basis 	of 	a
timely filed charge, 	and hear and decide 	the
case on the merits; 	otherwise, 	it shall
dismiss 	the 	charge.
===-~--_- 	-

Warning 	Letter
SA-CE-926-S
January 23, 	1997
Page 	2
conduct 	was 	arguably prohibited by 	the 	parties' 	memorandum of
understanding 	(MOU) 	and 	that 	the 	MOU provided 	for binding
arbitration of 	grievances.
The Unit 	3 	MOU then 	in effect 	between 	the parties 	included the
following provisions 	in Article 	23.1:
a. 	This 	contract 	sets 	forth the 	full 	and
entire 	understanding 	of 	the 	parties 	regarding
the 	matters 	contained 	herein, 	and any other
prior 	or 	existing 	understanding 	or 	contract
by the parties, 	whether 	formal 	or 	informal,
regarding 	any 	such matters 	are 	hereby
superseded. 	Except 	as 	provided 	in this
contract, 	it 	is 	agreed and understood that
each party 	to 	this 	contract 	voluntarily
waives 	its 	right 	to 	negotiate 	with respect 	to
any matter 	raised 	in 	negotiations 	or 	covered
by 	this 	contract.
With 	respect 	to 	other 	matters 	within 	the
scope 	of negotiations, 	negotiations may be
required as 	provided 	in 	subsection b. 	below.
b. 	The parties 	agree 	that 	the provisions 	of
this 	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 	[CSEA] 	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 	3, 	when 	all
three 	of 	the 	following 	exist:
(1) 	Where 	such changes would affect
the 	working 	conditions 	of 	a
significant 	number 	of 	employees 	in
Unit 	3;
(2) 	Where 	the 	subject matter of 	the
change 	is 	within 	the 	scope 	of
representation 	pursuant 	to 	the
Ralph C. 	Dills Act;
(

Warning 	Letter
SA-CE-926-S
January 23, 	1997
Page 3
(3) 	Where the Union requests to
negotiate 	with the 	State.
Any 	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 	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.
The 	language 	of Article 	23.1 	was 	relied upon by PERB 	in 	its
dismissal 	of 	S-CE-734-S, 	and by the 	arbitrator 	in deciding the
grievance. 	Arbitrator William Eaton 	issued his 	opinion and award
on June 14, 	1996, 	and ruled as follows:
1. 	The 	State 	did violate 	its 	obligations
under Article 	23.1.a 	and 	.b when 	it 	extended
the 	inmate work day an additional 	30 minutes.
2. 	The parties 	shall meet 	and confer
regarding the 	impact 	of 	the 	change 	in
dispute.
By letter of July 10, 	1996, 	CSEA demanded, 	based on the
arbitrator's 	award, 	that 	the Department 	rollback the 	changes 	in
work 	schedules 	and 	teacher/inmate 	contact 	time 	until 	negotiations
were 	completed. 	CSEA also took the position that 	the 	contact
time bargaining should be done 	at 	the 	"main table" 	where
negotiations 	over a 	successor MOU for Unit 	3 	were underway.
While 	the 	Department 	did provide 	subsequent 	notice 	and
opportunity to bargain pursuant 	to Arbitrator Eaton's 	award, 	the
Department 	did not 	agree 	to 	a 	rollback of 	the 	changes 	which gave
rise 	to 	the 	dispute 	and did not 	agree 	to 	submit 	the 	issue 	to 	the
main table 	negotiations.
CSEA's 	Position
CSEA argues that, 	under facts 	similar to this case, 	the Board
held an arbitrator's 	award 	repugnant 	in Dry Creek 	Joint
Elementary School 	District 	(1980) 	PERB Order No. 	Ad-8la 	(Dry
Creek). 	In Dry Creek, 	an arbitrator found that 	the 	respondent
-violated 	the 	collective 	bargaining agreement 	when 	it 	cut 	teacher
(

Warning 	Letter
SA-CE-926-S
January 23, 	1997
Page 4
salaries 	but 	did not 	order restoration of 	the 	cuts 	because 	he
"considered himself 	without 	authority" 	to do 	so 	and/or because 	he
believed 	such 	a 	remedy 	inappropriate.
PERB 	found the 	arbitrator's 	failure 	to order restoration of 	the
status 	quo 	rendered the 	remedy 	so 	deficient 	as 	to 	justify a
finding that 	the 	award was 	repugnant 	to 	the purposes 	of 	the
Educational 	Employment Relations Act, 	and directed 	issuance 	of 	a
complaint 	in the matter. 	(Id.)
-
CSEA contends 	that Arbitrator Eaton's 	award 	is 	repugnant 	to 	the
purposes of the Dills Act 	in two respects: 	(1) 	the arbitrator did
not order restoration of 	the 	status 	quo ante, 	and 	(2) 	he did not
order the 	negotiations 	to 	take 	place 	in conjunction with 	the
successor 	contract 	negotiations.
State's 	Position
The State opposes 	issuance of 	a complaint 	in this matter. 	The
State 	argues 	that 	relevant 	PERB precedent 	does 	not 	require 	a
remedy different 	than 	that 	ordered by Arbitrator Eaton, 	and 	that
PERB 	should not 	substitute 	its 	judgment 	for that 	of 	the
arbitrator.
Rule of Law
In adopting 	the 	test 	for 	exercise 	of 	its 	discretionary
jurisdiction 	to 	review arbitration 	awards 	for repugnancy, 	the
Board relied on National 	Labor Relations 	Board 	(NLRB) 	precedent.
(Dry Creek.) 	The NLRB has 	since 	reaffirmed its 	test 	in Motor
Convoy 	(1991) 	303 NLRB 135 as 	follows:
The 	[NLRB] 	will 	defer to an arbitration award
when 	the proceedings 	appear 	to have been 	fair
and regular, 	all parties 	have agreed to be
bound, 	and the 	decision of 	the 	arbitrator 	is
not 	clearly repugnant 	to 	the purposes 	and
policies of 	the Act. 	Spielberg Mfg. 	Co., 	112
NLRB 1080 	(1955). 	Additionally, 	the
arbitrator must 	have 	considered 	the 	unfair
labor practice 	issue 	which 	is before 	the
[NLRB]. 	Raytheon Co., 	140 NLRB 	883 	(1963).
In Olin Corp., 	268 NLRB 573, 	574 	(1984), 	the
[NLRB] 	clarified that 	an arbitrator has
adequately 	considered 	the 	unfair 	labor
practice 	if 	(1) 	the contractual 	issue 	is
factually parallel 	to 	the 	unfair 	labor
practice issue, 	and 	(2) 	the arbitrator was
presented generally with 	the 	facts 	relevant
(

Warning 	Letter
SA-CE-926-S
January 23, 	1997
Page 5
to 	resolving the unfair 	labor practice. 	The
[NLRB] 	will 	find deferral 	inappropriate under
the 	clearly repugnant 	standard only when 	the
arbitrator's 	award 	is 	"'palpably wrong,'
i.e., 	. 	. 	. 	is not susceptible to an
interpretation consistent 	with the Act."
Ibid. 	The party seeking 	to have 	the 	[NLRB]
reject 	deferral 	bears 	the burden of proof.
Ibid.
(See, 	also, 	The Hoover Co. 	(1992) 	307 NLRB 524.)
The 	Board 	adopted 	the 	Spielberg 	criteria 	and 	restated 	the
repugnancy test 	in Dry Creek 	as 	follows:
While 	the 	Board will 	not 	necessarily 	find 	an
award 	repugnant 	because 	it 	would have
provided 	a 	different 	remedy than 	that
afforded by the 	arbitrator, 	it 	may well 	so
consider an award which 	fails 	to protect 	the
essential 	and 	fundamental 	principles 	of 	good
faith negotiations. 	[Emphasis 	in original.]
Discussion
Contrary to CSEA's 	assertions, 	the 	facts underlying the 	current
charge 	differ materially 	from Dry Creek. 	Dry 	Creek 	relied on
clear precedent 	holding 	that 	"good 	faith negotiations 	cannot 	and
should not proceed until 	the 	status 	quo 	is 	restored" 	[Footnote
omitted.], 	but did so under facts where 	the respondent had
unilaterally 	implemented a 	change 	in 	terms 	and conditions 	of
employment 	(salaries) 	and the 	decision itself was 	subject 	to a
duty to bargain.
In 	fashioning 	appropriate 	remedies 	and determining whether 	to
order a return to the 	status quo ante, 	the Board has 	long
distinguished between 	those 	cases where 	the 	decision 	itself 	is 	a
mandatory 	subject 	of 	bargaining 	and 	those 	cases 	where 	the
respondent 	is 	obliged to bargain 	the 	effects of 	an otherwise
lawful change by the employer. 	(See, 	for example, 	Moreno Valley
Unified School 	District 	(1982) 	PERB Decision No. 	206 	(Moreno
Valley).)
The 	facts 	alleged by 	CSEA establish 	that 	the 	issue 	before
Arbitrator Eaton was 	the 	same 	as 	in this unfair practice 	charge,
and the parties 	agreed to be 	bound by the 	decision. 	CSEA does
not 	allege 	that 	the 	arbitration proceedings were 	other 	than 	"fair
and regular."
I

Warning Letter
SA-CE-926-S
January 23, 	1997
Page 6
Under the plain language of Article 23.1.a and 	.b, 	the State was
obliged to bargain the 	impact of the change it 	implemented but
not the decision itself. 	Arbitrator Eaton found the State in
violation of Article 23.1, 	and ordered the State to meet and
confer with CSEA over the impact of the change.
Under Moreno Valley and similarly decided cases, 	PERB precedent
does not routinely require restoration of the status quo ante
under facts like those here. 	For the foregoing reasons, 	the
first point 	in CSEA's argument 	for a repugnancy finding must be
dismissed.
The second point 	raised by CSEA concerns 	its demand that 	the
negotiations over impact of the 	change be addressed within the
larger negotiations over a successor contract. 	CSEA does not
cite any precedent or offer a rationale for its position that the
arbitrator should have ordered such a remedy.
Under Dry Creek, 	it is not appropriate to speculate whether PERB
would have ordered a different 	remedy. 	Under relevant precedent,
there 	is no basis for concluding that either of CSEA's objections
establish that the arbitrator's award was 	"palpably wrong" 	(Olin
Corp and Motor Convoy) 	or failed "to protect the essential and
fundamental principles of good faith negotiations." 	(Dry Creek.)
Conclusion
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 January 30. 	1997. 	I
shall dismiss your charge. 	If you have any questions, 	please
call me at 	(916) 	322-3198, ext. 359.
Les Chisholm
Regional Director