State of California (Department of Personnel Admin) (PERB 1296S)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA UNION OF 	SAFETY
EMPLOYEES,
Charging 	Party,
v.
STATE OF CALIFORNIA 	(DEPARTMENT
OF PERSONNEL ADMINISTRATION),
Respondent.
)
)
)
) 	Case No. 	SA-CE-1038-S
PERB Decision No. 	1296-S
October 	22, 	1998
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Appearances; 	James P. 	Whalen, 	Attorney, 	for California Union of
Safety Employees; 	Christopher E. 	Thomas, 	Legal Counsel, 	for State
of California 	(Department 	of 	Personnel Administration).
Before Caffrey, 	Chairman; 	Dyer and Jackson, 	Members.
DECISION
JACKSON, 	Member: 	This 	case is before the Public Employment
Relations 	Board 	(PERB or Board) 	on exceptions 	filed by the 	State
of California 	(Department 	of 	Personnel Administration) 	(State) 	to
a 	PERB administrative 	law judge's 	(ALJ) 	proposed decision
(attached). 	The ALJ found that 	the State violated section
3519(a), 	(b) 	and 	(c) 	of the Ralph C. Dills Act 	(Dills Act)1 when
1The Dills Act 	is 	codified at Government 	Code 	section 	3512
et 	seq. 	Section 3519 provides, 	in pertinent part:
It 	shall be unlawful 	for the 	state to do any
of 	the 	following:
(a) 	Impose or threaten to impose reprisals
on employees, 	to discriminate or threaten to
discriminate against 	employees, 	or otherwise
to interfere with, 	restrain, 	or coerce
employees because 	of 	their exercise 	of 	rights
guaranteed by this 	chapter. 	For purposes 	of
this subdivision, 	"employee" 	includes an
applicant 	for employment 	or 	reemployment.

it 	unilaterally 	rescinded 	its 	past 	practice 	of 	providing
increases 	in travel 	and mileage 	reimbursement 	to unit 	7 members
when 	it provided such increases 	to non-represented employees.
(b) 	Deny to employee organizations 	rights
guaranteed 	to 	them by 	this 	chapter.
(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 unfair practice 	charge, 	the ALJ's proposed
decision, 	the State's appeal 	and California Union of 	Safety
Employees' 	(CAUSE) 	response. 	The Board finds the ALJ's proposed
decision 	to be 	free 	from prejudicial 	error and adopts 	it 	as 	the
decision of 	the Board itself, 	consistent with the 	following
discussion.
DISCUSSION
The parties 	dispute whether the 	"parity clause" 	at 	section
12.1(n)2 of the memorandum of understanding 	(MOU) 	between them
survived 	the 	expiration of 	the MOU. 	The 	State argues 	that 	the
language 	of 	section 12.1(n) 	limits 	it 	to the 	"duration of 	the
agreement," 	and thus, 	the obligation to pay CAUSE'S 	represented
employees 	expired with the 	agreement.
2Section 12.1(n) 	of the MOU reads:
During the term of 	this agreement, 	the State
agrees 	to apply any 	future 	changes 	in the
method of 	payment 	and 	increases 	to business
and 	travel 	expenses 	to Unit 	employees 	at 	the
same 	time 	the 	changes 	are 	effective 	for
excluded 	employees.
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CAUSE argues 	that the obligation of section 12.1(n) 	lives
beyond expiration of 	the agreement 	and thus, 	the 	State's 	failure
to apply 	the 	increase 	in travel 	reimbursement 	to unit 	7 	employees
at 	the 	same 	time as 	it was 	given to excluded employees
constitutes 	an unlawful 	unilateral 	change.
The 	decision of 	the 	Court 	of Appeal 	in California State
Employees Association v. 	Public Employment Relations Bd. 	(1996)
51 Cal.App.4th 923 	[59 Cal.Rptr. 	2d 488], 	leads to the conclusion
that 	the 	State 	committed an unlawful 	unilateral 	change 	in 	this
case. 	The 	court 	held that 	an employer may only make a unilateral
change upon expiration of 	a 	contract when there 	is 	intentional
waiver of 	the union's 	right 	to bargain over the 	subject 	of 	the
change. 	(Id.) 	The 	court held that 	"for the duration of 	this
agreement" 	language within a 	specific 	contractual 	provision was
insufficient 	to 	constitute 	such a waiver as 	a matter of 	law.
-
(Id,)
Other than pointing 	to 	the duration language, 	the State was
unable 	to 	show that 	CAUSE 	somehow waived 	its 	right 	to bargain
over the subject of 	travel 	reimbursement 	rates. 	Therefore, 	the
State's 	change 	in the past practice 	embodied in the 	terms 	of MOU
section 12.1(n) 	was unlawful. 	Upon this basis, 	we adopt the
proposed decision of 	the ALJ as 	the 	decision of 	the 	Board 	itself.
ORDER
Upon the 	foregoing 	findings 	of 	fact 	and conclusions 	of 	law
and the entire 	record in the 	case, 	it 	is 	found that 	the State of
California 	(Department 	of 	Personnel Administration) 	(State)
w
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violated section 3519(a), 	(b) 	and 	(c) 	of the Ralph C. 	Dills Act
(Dills Act). 	The State violated the Dills Act when it
unilaterally 	rescinded 	a 	contractually 	established 	practice
requiring 	the State 	to provide 	increases 	in business 	and 	travel
expenses 	to members 	of unit 	7 	at 	the 	same 	time as 	they were
provided 	to 	excluded employees. 	By 	rescinding 	the practice
without 	first meeting 	and 	conferring with 	the 	California Union 	of
Safety Employees 	(CAUSE), 	the State failed to meet and confer in
good 	faith. 	Because 	this 	action had 	the additional 	effect 	of
interfering with the 	right 	of 	CAUSE 	to represent 	its members, 	the
failure 	to meet 	and 	confer 	in good 	faith also violated 	section
3519(b). 	Because 	the action had the 	further effect 	of denying
unit 	7 members 	travel 	rate 	reimbursement 	increases 	to which they
were entitled, 	the State's action violated section 3519(a).
Pursuant to Dills Act section 3514.5(c), 	it is hereby
ORDERED 	that 	the State and 	its 	representatives 	shall:
A. 	CEASE AND DESIST FROM:
1. 	Unilaterally 	rescinding 	the 	contractually
established practice 	that 	required 	the 	State 	to provide members
of unit 	7 with all 	increases 	in travel 	and mileage 	reimbursement
rates 	given to 	excluded employees;
2. 	Interfering with the 	right 	of 	CAUSE 	to 	represent
its members; 	and
3. 	By the 	same 	conduct, 	interfering with the 	right 	of
members 	of unit 	7 	to participate 	in the activities 	of 	an employee
organization.
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B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE THE 	POLICIES 	OF THE DILLS ACT:
1. 	Effective 	immediately upon service 	of 	a 	final
decision in this matter, 	reinstate 	the 	contractually established
practice 	of 	increases 	in business 	and travel 	expenses 	to unit 	7
members 	at 	the 	same 	time as 	they are provided to excluded
employees.
2. 	Within thirty 	(30) 	days 	following the date that
this 	decision is no longer subject 	to appeal, 	make whole any unit
7 member who 	incurred financial 	loss 	as 	a result 	of 	the
unilateral 	rescission of 	the 	contractually 	established practice
requiring parity 	for business 	and 	travel 	expense 	reimbursement,
including mileage. 	This 	reimbursement 	shall 	be 	augmented by
interest at 	the rate of 	seven 	(7) 	percent per year.
3. 	Within ten 	(10) 	days 	following date no longer
subject 	to appeal, 	post at all work locations where notices 	to
members 	of unit 	7 	customarily are posted, 	copies 	of 	the Notice
attached hereto as 	an Appendix. 	The Notice must 	be 	signed by an
authorized agent 	of 	the State, 	indicating that 	the State will
comply with the 	terms of 	this Order. 	Such posting shall be
maintained 	for a period of 	thirty 	(30) 	consecutive workdays.
Reasonable 	steps 	shall be 	taken to ensure 	that 	the Notice 	is 	not
reduced 	in size, 	altered, 	defaced or covered with any other
material.
4. 	Written notification of 	the actions 	taken to
comply with 	this 	Order shall 	be made 	to 	the 	Sacramento Regional
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Director of 	the 	Public 	Employment Relations 	Board 	in accord with
the director's 	instructions.
Chairman Caffrey and Member Dyer 	joined 	in 	this 	Decision.
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APPENDIX NOTICE 	TO 	EMPLOYEES
POSTED 	BY ORDER OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
An agency of 	the 	State 	of 	California
After a hearing 	in Unfair Practice 	Case No. 	SA-CE-103 8-S,
California Union of 	Safety Employees v. 	State 	of California
(Department of Personnel Administration). 	in which all parties
had the 	right 	to participate, 	it has been found that 	the State of
California 	(Department 	of 	Personnel Administration) 	(State)
violated the Ralph C. 	Dills Act 	(Dills Act), 	Government Code
section 3519(a), 	(b) 	and 	(c). 	The State violated the Dills Act
when 	it 	unilaterally 	rescinded a 	contractually 	established
practice 	requiring 	the 	State 	to provide 	increases 	in business 	and
travel 	expenses 	to members 	of unit 	7 at 	the same 	time as 	they
were provided to excluded employees. 	By rescinding 	the practice
without 	first meeting and 	conferring with 	the 	California Union of
Safety Employees 	(CAUSE), 	the State 	failed to meet and confer in
good 	faith. 	Because 	this 	action had the additional 	effect 	of
interfering with the 	right 	of 	CAUSE 	to represent 	its members, 	the
failure 	to meet 	and 	confer 	in good 	faith also violated 	section
3519(b). 	Because 	the action had the 	further effect 	of 	denying
unit 	7 members 	travel 	rate 	reimbursement 	increases 	to which they
were entitled, 	the State's action violated section 3519(a).
As 	a result 	of 	this 	conduct, 	we have been ordered to post
this Notice and we will:
A. 	CEASE AND DESIST FROM:
1. 	Unilaterally 	rescinding 	the 	contractually
established practice 	that 	required 	the 	State 	to provide 	to
members 	of unit 	7 with all 	increases 	in travel 	and mileage
reimbursement 	rates 	given to excluded employees;
2. 	Interfering with the 	right 	of 	CAUSE 	to 	represent
its members; 	and
3. 	By the 	same 	conduct, 	interfering with the 	right 	of
members 	of unit 	7 	to participate 	in the activities 	of 	an employee
organization.
B. 	TAKE THE 	FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE 	POLICIES 	OF THE DILLS ACT:
1. 	Effective 	immediately upon service 	of a 	final
decision 	in this matter, 	reinstate 	the 	contractually established
practice 	of 	increases 	in business 	and travel 	expenses 	to unit 	7
members 	at 	the 	same 	time 	as 	they are provided to excluded
employees.
2. 	Within thirty 	(30) 	days 	following the date that
this decision is no longer subject 	to appeal, 	make whole any unit
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7 member who 	incurred financial 	loss 	as 	a 	result 	of 	the
unilateral 	rescission of 	the 	contractually 	established practice
requiring parity 	for business 	and 	travel 	expense 	reimbursement,
including mileage. 	This 	reimbursement 	shall be augmented by
interest at 	the rate of seven 	(7) 	percent per year.
Dated: 	STATE 	OF 	CALIFORNIA
(DEPARTMENT OF 	PERSONNEL
ADMINISTRATION)
By:.
Authorized 	Agent
THIS 	IS AN OFFICIAL NOTICE. 	IT MUST REMAIN POSTED 	FOR AT LEAST
THIRTY 	(30) 	CONSECUTIVE WORKDAYS 	FROM THE DATE OF POSTING AND
MUST NOT BE REDUCED IN SIZE, 	DEFACED, 	ALTERED OR COVERED BY ANY
OTHER MATERIAL.
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	2

STATE 	OF 	CALIFORNIA
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA UNION OF 	SAFETY
EMPLOYEES,
Charging 	Party,
v.
STATE 	OF 	CALIFORNIA 	(DEPARTMENT
OF PERSONNEL ADMINISTRATION),
Respondent.
)
)
)
) 	Unfair 	Practice
Case No. 	SA-CE-1038-S	)
)
) 	PROPOSED DECISION
) 	(5/21/98)
)
)
)
Appearances: 	James P. 	Whalen, 	Legal Counsel, 	for California
Union of Safety Employees; 	Christopher E. 	Thomas, 	Legal Counsel,
for State 	of 	California 	(Department 	of 	Personnel Administration).
Before Ronald E. 	Blubaugh, 	Administrative Law Judge.
PROCEDURAL 	HISTORY
In this case, 	an exclusive representative 	challenges 	the
refusal 	of 	the 	State 	of 	California 	(State) 	to 	increase 	travel
reimbursement 	rates 	for unit members 	at 	the 	same 	time 	that 	the
State 	increased rates 	for non-represented employees. 	The
exclusive 	representative 	contends 	that 	the 	State was 	so 	obligated
through 	a past 	practice 	established by an 	expired memorandum 	of
understanding 	(MOU). 	The 	State replies that 	the obligation to
pass 	on 	such 	increases 	to unit 	members 	existed 	for 	the 	duration
of 	the MOU, 	only. 	Since 	the MOU no longer is 	in force, 	the 	State
continues, 	the 	obligation to 	raise 	travel 	reimbursement 	rates no
longer exists.
The 	California Union of 	Safety Employees 	(CAUSE) 	commenced
this 	action on October 21, 	1997, 	by filing an unfair practice
charge against 	the 	State. 	The Office 	of 	the General 	Counsel 	of
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the 	Public 	Employment 	Relations 	Board 	(PERB 	or 	Board) 	followed 	on
November 	7, 	1997, 	with a 	complaint 	against 	the 	State. 	The 	State
answered 	the 	complaint 	on November 	24, 	1997.
The 	complaint 	alleges 	that 	prior 	to 	July 	1, 	1997, 	it 	was 	the
policy 	of 	the 	State 	that 	travel 	reimbursement 	rates 	for 	employees
in 	bargaining 	unit 	7 	were 	the 	same 	as 	those 	of 	excluded
employees. 	This policy, 	the 	complaint 	alleges, 	was 	fixed by
section 	12.1(n) 	of 	the 	expired MOU. 	On or 	about 	July 	1, 	1997,
the 	complaint 	continues, 	the 	State 	changed 	the 	policy by 	failing
to 	reimburse 	unit 	7 	members 	for 	meals 	and 	travel 	expenses 	at 	the
new 	rate 	which 	excluded 	employees 	received. 	This 	action, 	the
complaint 	alleges, 	was 	taken without 	prior 	notice 	to 	CAUSE 	and
without 	having 	afforded 	CAUSE 	the 	opportunity 	to 	meet 	and 	confer
over 	the 	decision 	and/or 	its 	effects. 	By making 	this 	change, 	the
complaint 	alleges, 	the 	State violated Ralph 	C. 	Dills Act 	(Dills
Act) 	section 3519 (c) 	and, 	derivatively, 	(a) 	and 	(b).1
1 Unless 	otherwise 	indicated, 	all 	statutory 	references 	are 	to
the 	Government 	Code. 	The 	Dills 	Act 	is 	codified 	at 	section 	3512
et 	seq. 	In 	relevant part, 	section 3519 	provides 	as 	follows:
It 	shall 	be 	unlawful 	for 	the 	state 	to 	do 	any
of 	the 	following:
(a) 	Impose 	or 	threaten 	to 	impose 	reprisals
on 	employees, 	to 	discriminate 	or 	threaten 	to
discriminate 	against 	employees, 	or 	otherwise
to 	interfere with, 	restrain, 	or 	coerce
employees 	because 	of 	their 	exercise 	of 	rights
guaranteed by 	this 	chapter. 	For purposes 	of
this 	subdivision, 	"employee" 	includes 	an
applicant 	for 	employment 	or 	reemployment.
(b) 	Deny 	to 	employee 	organizations 	rights
guaranteed 	to 	them 	by 	this 	chapter.
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(c) 	Refuse or 	fail 	to meet 	and confer 	in
good 	faith with 	a 	recognized 	employee
organization.
The 	State 	filed an answer to the 	complaint 	on November 24,
1997, 	admitting that 	it was an employer and that 	CAUSE was a
recognized organization but 	denying all 	other allegations. 	The
answer also 	set 	out 	various 	affirmative 	defenses 	that 	will 	be
dealt 	with herein as 	necessary. 	A hearing was 	conducted 	in
Sacramento on March 17-18, 	1998. 	With the 	filing of briefs, 	the
case was 	submitted for decision on May 11, 	1998.
FINDINGS 	OF 	FACT
The 	respondent 	Department 	of 	Personnel 	Administration 	(DPA)
is 	the 	representative of 	the 	Governor 	for 	the purposes 	of 	meeting
and conferring. 	The 	department 	is 	the 	State 	employer within the
meaning of 	section 3513(j) 	of 	the Dills Act. 	CAUSE 	is a
recognized 	employee 	organization within 	the 	meaning 	of 	section
3513(b) 	and is 	the 	exclusive 	representative 	of 	State 	employee
bargaining unit 	7, 	protective 	services 	and public 	safety.
The 	collective 	bargaining 	agreement 	covering unit 	7 	expired
on June 	30, 	1995. 	Although the parties have been in negotiations
continuously since 	that 	date, 	they had not 	entered a 	successor
agreement 	as 	of 	the 	completion of 	the 	hearing 	in 	the present
case. 	All 	events 	at 	issue occurred after the 	expiration of 	the
agreement.
Effective July 1, 	1997, 	the State 	increased the rate of
travel 	reimbursement 	for 	all 	employees 	excluded 	from 	collective
33

bargaining and 	for 	employees 	in bargaining unit 	5.2 Under the
new schedule, 	the 	travel 	reimbursement 	rates 	increased as
follows:3 from $5.50 	to 	$6.00 	for breakfast, 	from $9.50 	to
$10.00 	for 	lunch, 	from $17.00 	to 	$18.00 	for dinner and from 	$5.00
to 	$6.00 	for 	incidentals. 	The mileage 	reimbursement 	rate 	for use
of 	a personal 	vehicle 	increased 	from 24 	cents per mile 	to 	31
cents per mile.
The 	travel 	reimbursement 	schedule 	and 	rules 	put 	into
effect on July 1, 	1997, 	also eliminated reimbursement 	for
"noncommercial" 	lodging. 	This 	is 	lodging which traveling
employees 	receive 	from relatives 	or 	friends 	or 	take 	in a
second residence. 	Formerly, 	employees were 	entitled to 	a
reimbursement 	of 	$23 	or 	$24 	per day for 	"noncommercial" 	lodging.
The 	changes 	in travel 	reimbursement 	rates were 	set 	out 	in a
memorandum issued July 1, 	1997, 	by Rick McWilliam, 	chief 	of
2State 	employee bargaining unit 	5 	is 	composed of 	officers 	of
the 	California Highway Patrol 	(CHP). 	Article 	54 	of 	the expired
memorandum between 	the 	State 	and 	the 	California Association 	of
Highway Patrolmen 	(CAHP) 	reads 	as 	follows:
DPA 	[Department 	of 	Personnel 	Administration]
and 	CAHP 	agree 	that 	unless 	otherwise
specifically covered by this Agreement, 	the
business, 	travel, 	and relocation expenses and
reimbursements 	for Unit 	5 	employees 	shall be
the 	same 	as 	excluded employees.
State 	witnesses 	testified 	that 	this 	clause 	created 	a practice
which 	extended beyond 	the 	expiration 	of 	the 	MOU.
3The 	new reimbursement 	rates 	for 	excluded 	employees 	are 	set
out 	in charging party exhibit 	2. 	The 	rates 	for unit members 	are
set 	out 	in joint 	exhibit 	1, 	section 12.1(a) 	and section
12.1(i) (1). 	Prior to July 1, 	1997, 	the rates paid to excluded
employees 	for 	short-term 	travel 	and mileage 	reimbursement 	were
the 	same 	as 	those 	set 	out 	for unit members 	in 	joint 	exhibit 	1.
4

labor relations, 	at DPA. 	State negotiators brought a copy of
Mr. 	McWilliam's memo to the 	July 31 	negotiating 	session with
CAUSE. 	State 	negotiators 	offered 	the 	increased 	reimbursement
rates 	contained 	in 	the McWilliam memo 	as 	a negotiating proposal
to CAUSE. 	However, 	CAUSE negotiators 	replied with an assertion
that 	unit 	7 members were 	entitled to 	the 	rate 	increase,
immediately. 	The 	CAUSE negotiators 	based this 	assertion on
section 12.1(n) 	of the expired MOU. 	Section 12.1(n), 	a 	"me too"
or parity clause 	for travel 	reimbursement, 	reads 	as 	follows:
During the 	term of 	this 	agreement, 	the 	State
agrees 	to 	apply any future 	changes 	in 	the
method of 	payment 	and 	increases 	to business
and travel 	expenses 	to Unit 	employees 	at 	the
same 	time 	the 	changes 	are 	effective 	for
excluded 	employees.
The 	State 	rejected 	the 	contention 	that 	section 	12.1(n)
required 	the 	immediate payment 	of 	increased 	travel 	reimbursement
rates 	to members 	of unit 	7. 	State negotiators 	asserted that 	the
section applied only 	"during the 	term" 	of 	the 	agreement. 	Since
the MOU had expired, 	the 	State negotiators 	asserted, 	so had the
obligation 	to pay unit 	members 	the 	increased reimbursement 	rates
provided 	to 	excluded 	employees.
The 	first 	unit 	7 	MOU to 	contain a me 	too 	clause 	for 	travel
reimbursement 	rates was 	the 	1988-91 	agreement. 	The 	relevant
provision of that MOU, 	section 12.1 (j), 	reads as follows:
During the 	Fiscal Years 	89/90 	and 90/91, 	the
State 	agrees to give Unit 	7 	employees 	the
same 	future 	business 	and travel 	expense
increases 	at 	the 	same 	time 	the 	State provides
them 	to 	excluded 	employees.
UT
	5

There 	is 	no 	evidence 	about 	which party proposed 	the 	language 	or
about 	any discussion which 	took place 	concerning 	it.
The 	negotiations 	history is 	more 	complete 	for 	the 	round of
bargaining that 	commenced 	in 	1991. 	The 	State's 	opening proposal
in 	1991 	contained no me 	too provision 	for 	travel 	reimbursement.
CAUSE proposed 	continuation of 	the 	prior 	clause 	modified 	only 	so
as 	to be 	applicable 	in the 	"Fiscal 	Years 	91/92 	and 	92/93." 	On
May 15, 	1992, 	the State's chief negotiator for unit 	7, 	Michael
Navarro, 	proposed the language that became section 12.1(n). 	The
parties 	signed a 	tentative 	agreement 	on 	that 	language 	on May 22.
Mr. 	Navarro 	testified that 	he proposed the 	language 	that
changed 	the 	limitation 	from 	two 	specific 	fiscal 	years 	to 	the
phrase 	"during the 	term of 	this 	agreement" 	as 	"a matter of
style." 	He 	said he 	did not 	consider the 	revision 	in wording 	to
have 	changed the meaning because, 	either way, 	the 	clause would
not 	be applicable 	after the 	expiration of 	the MOU. 	He 	said 	it
was 	his 	intent 	that 	"[w]ith respect 	to this provision, 	all 	bets
are 	off" 	after the 	expiration of 	the MOU. 	"If 	any changes were
made 	to the managerial 	rates 	at 	that point 	in time 	then they
wouldn't 	necessarily be 	passed on 	to Unit 	7."
Mr. 	Navarro 	testified that 	he 	could not 	recall 	any
discussion 	in negotiations 	about 	the meaning of 	the 	phrase
"during 	the 	term of 	this 	agreement." 	The 	two principal 	CAUSE
negotiators, 	attorney Gary Messing 	and Chief 	Legal 	Counsel 	Sam
McCall, 	also 	testified that 	they could recall 	no 	discussion 	about
the meaning of 	the phrase.
6
6

As 	noted, 	the 	MOU 	for 	unit 	7, 	and 	all 	other 	State-union
contracts, 	expired on June 	30, 	1995. 	On June 	27, 	1995,
David 	Tirapelle, 	director 	of 	DPA, 	sent 	a 	memo 	to 	certain 	State
managers 	regarding 	the 	effect 	of 	the 	expiration 	of 	the 	contracts.
The 	memo 	sets 	out 	the 	general 	principle 	that 	terms 	and 	conditions
of 	employment 	for 	State 	employees 	would 	continue 	unchanged. 	The
memo 	also 	identifies 	certain 	aspects 	of 	the 	relationship 	between
the 	State 	and 	the 	various 	unions 	which 	would 	be 	different.
Regarding 	the 	continuation 	of 	wages, 	benefits 	and working
conditions, 	the 	memo 	states 	the 	following policy:
The 	salaries, 	benefits, 	and other 	terms 	and
conditions 	of 	employment 	of 	represented
employees 	in 	bargaining 	units 	with 	expired
contracts 	will 	remain 	unchanged 	so 	long 	as
negotiations 	continue, 	except 	for 	the
following 	changes. 	There 	may 	be 	additional
departmental 	policies 	or 	contract 	provisions
which 	are 	time 	limiting 	that 	may 	require
action. 	These 	will 	be 	reviewed 	on 	an
individual basis. 	. 	. 	.
The 	memo 	continues 	by 	listing 	eight 	specific 	changes 	in 	the
relationship 	between 	the 	State 	and 	the 	unions. 	These 	changes 	can
be 	summarized 	as 	follows:
(1) 	Employees 	would 	no 	longer 	be 	subject 	to 	fair 	share
(agency 	fee) 	deductions 	or 	voluntary 	fee 	payer 	deductions 	in 	the
one 	unit 	that 	had 	voluntary 	deductions;
(2) 	Maintenance 	of 	membership 	provisions 	would 	no 	longer 	be
applicable 	and 	employees 	could 	withdraw 	from 	union 	membership 	at
any 	time 	by 	notifying 	the 	State 	Controller 	and 	their 	union;
7
7

(3) 	Union 	requests 	for 	arbitration 	filed 	after 	the
expiration 	of 	the 	contracts 	would 	be 	reviewed 	on 	a 	case-by-case
basis;
(4) 	Union-represented 	employees 	in 	classifications 	subject
to 	the 	Fair 	Labor 	Standards 	Act 	would 	have 	to 	be 	compensated 	in
cash 	for 	all 	overtime 	worked 	and 	use 	of 	compensating 	time 	off
would 	no 	longer 	be 	permitted;
(5) 	Union-represented 	employees 	would 	no 	longer 	be 	entitled
to 	use 	union 	leave 	except 	where 	agreed 	to 	in 	negotiations 	ground
rules;
(6) 	All 	union 	time 	banks 	consisting 	of 	State-donated 	time
would 	be 	terminated 	and 	employees 	currently 	using 	such 	leave 	time
must 	return 	to 	work;
(7) 	All 	union 	time 	banks 	consisting 	of 	employee-donated
time 	could 	not 	be 	used 	and 	all 	represented 	employees 	using 	such
leave 	time 	must 	return 	to 	work;
(8) 	The 	entire 	agreement 	clauses 	of 	all 	expired 	collective
bargaining 	contracts 	are 	superseded 	by 	section 	3516.5. 	This
means 	that 	any 	department 	proposing 	to 	change 	a 	work 	rule 	or
policy 	within 	the 	scope 	of 	representation 	must 	obtain 	a
delegation 	of 	authority 	from 	DPA 	to 	notify 	exclusive
representatives 	and 	meet 	and 	confer 	with 	them.
The 	Tirapelle 	memo 	drew 	a 	prompt, 	negative 	reaction 	from
CAUSE. 	The 	union 	filed 	an 	unfair 	practice 	charge 	challenging
portions 	of 	the 	memo. 	In particular, 	union 	leaders 	were
concerned 	about 	the 	changed 	conditions 	regarding 	union 	leave 	and
CO
	8

released time. 	These concerns 	soon 	led to a round of
negotiations 	to 	establish 	conditions 	that 	would be 	in 	effect
while 	the 	parties 	negotiated over 	a 	successor MOU.
On October 30, 	1995, 	the parties entered the 	first of three,
one-year 	interim agreements. 	The most 	recent 	of 	these 	agreements
extends 	through September 30, 	1998, 	unless earlier superseded by
a 	successor 	to 	the MOU that 	expired 	in 	1995. 	The 	interim
agreements, 	which are virtually identical, 	reinstate 	from the
expired MOU certain provisions 	concerning 	released 	time. 	The
agreements 	also 	set 	out 	conditions 	under which 	three 	named 	CAUSE
officers 	will 	receive 	full 	released time. 	The 	interim agreements
provide 	for 	the 	continuation of 	certain 	specifically 	identified
side 	letter 	agreements which 	the 	parties 	had entered under 	the
expired MOU. 	CAUSE promises 	under 	the 	interim agreements 	not 	to
pursue 	certain unfair practice 	charges 	which 	it 	earlier 	had 	filed
with the 	PERB.
At 	the 	insistence of DPA, 	the 	interim agreements make
reference 	to 	the 	Tirapelle 	memo 	in 	the 	following 	language:
CAUSE understands 	that 	it 	is 	the 	STATE'S
position that the June 27, 	1995, 	memo from
David J. 	Tirapelle 	(See Attachment C) 	remains
in effect 	except 	as 	modified by this
agreement. 	CAUSE reserves 	the 	right 	to 	seek
any remedies 	available 	with 	respect 	to 	the
legal 	effect of 	the memo.
Except 	for the unfair practice 	charges 	CAUSE agreed not 	to
pursue, 	CAUSE has not 	attempted to 	seek any remedies 	regarding
the 	Tirapelle memo. 	I 	find that 	the 	reference 	to 	the Tirapelle
memo 	incorporated the 	terms 	of 	that 	document 	into 	the 	interim
9
9

agreements. 	I 	conclude 	that 	the 	CAUSE 	reservation of 	the 	right
to 	seek 	remedies was 	face-saving 	language 	and amounts 	to 	little
more 	than 	a 	grumbling acceptance 	of 	the 	other 	conditions
proclaimed by Mr. 	Tirapelle.
There was 	no 	occasion during the 	life 	of 	the 	1988-91
or 	1992-95 	MOUs 	that 	excluded 	employees 	received 	travel
reimbursement 	rate 	increases 	different 	from unit 	7 	employees.
Similarly, 	excluded employees 	received no 	increases 	in 	travel
reimbursement 	rates 	during 	the 	one-year period between 	expiration
of 	the 	1988-91 	MOU and the 	signing of 	the 	1992-95 	MOU.
On January 1, 	1996, 	however, 	excluded employees did receive
small 	adjustments 	in 	two 	categories 	of 	travel 	reimbursement 	that
were not passed on to members of unit 	7. 	On that 	date, 	the 	daily
travel 	reimbursement 	rates 	for non-commercial 	lodging 	and 	for
long-term 	lodging were 	both 	increased by 	$1 	for 	excluded
employees.
State negotiators on September 18, 	1995, 	provided CAUSE
with a 	draft 	proposal 	describing 	these 	revisions 	in 	travel
reimbursement 	rules 	for excluded employees. 	Terrie Jordan, 	the
DPA manager 	in charge of 	travel 	reimbursement, 	explained the
proposed changes 	to 	the 	CAUSE 	team. 	She 	also 	offered the
modifications 	as 	a negotiating proposal 	for unit 	7. 	There 	is
no 	evidence 	of 	any 	further discussion about 	the 	issue. 	The
document 	given to CAUSE was 	entitled, 	"1995 	Proposed Travel 	Rule
Revisions 	- 	Summary." 	The 	document 	sets 	out 	no 	specific 	date 	for
implementation of 	the proposed revision. 	A final 	version of 	the
10

document, 	which contains 	an implementation date, 	was 	completed in
December of 	1995 	and 	filed with the 	Secretary of 	State.
Mr. 	McCall 	testified that 	at 	a negotiating session CAUSE did
receive 	a 	copy of 	the 	proposed 	rules 	affecting 	travel 	for
excluded employees. 	He 	said the 	State 	negotiators 	described the
document 	as 	"a proposal." 	He 	said CAUSE was never notified 	that
the 	change was put 	into 	effect 	and he was 	unaware 	of 	the
implementation of 	the 	change.
The phrase 	"during the 	term of 	this 	agreement" 	appears 	in
several 	clauses 	of 	the expired MOU 	in addition 	to 	the 	section at
issue. 	Section 2.10 provides, 	"during the 	term of 	this
Agreement," 	for 	the 	use by CAUSE 	representatives 	of 	up 	to 	2,200
hours 	of 	released time 	to 	attend CAUSE 	organizational 	matters.
Mr. 	McCall 	testified that 	this 	section did not 	live 	on because
CAUSE 	representatives 	had used up 	the 	2,200 	hours 	prior 	to 	the
expiration of 	the MOU.
Section 	9.6 	of 	the 	expired MOU 	set 	out 	the 	rules 	regarding
union 	leaves 	of 	absence 	"during the 	term of 	this 	agreement." 	The
Tirapelle 	memorandum 	explicitly 	identified 	contract 	provisions
pertaining 	to union 	leaves 	as 	provisions 	that 	would not 	continue
after expiration of 	the MOUs. 	However, 	the 	interim agreements
reinstate 	section 	9.6 	for three 	named employees 	which, 	according
to Mr. 	McCall, 	effectively reinstated the provision.
Section 	12.10(a)(1) 	of 	the expired MOU provides 	that
"[d]uring the 	term of 	this 	contract" 	the 	State may impose 	a 	rent
of 	up 	to 	$75 	per month to 	employees 	previously living rent-free
11

in State 	housing. 	The provision also permits 	the 	State 	to 	raise
rents 	to 	fair market 	value when employees 	vacate 	State 	housing.
The parties 	are 	in dispute 	about 	whether the 	State 	has 	the
authority to 	raise 	rents 	since 	expiration of 	the MOU. 	Mr. 	McCall
expressed the 	belief 	that 	the 	State 	continued 	to 	have 	such
authority. 	Mr. 	Navarro, 	the State's chief negotiator for unit 	7,
testified that 	in his view the 	State 	no 	longer has 	such
authority.
Section 	5.1 	provides 	that 	"[d]uring 	the 	term of 	this
[c]ontract" 	CAUSE will not 	"authorize, 	institute, 	aid, 	condone or
engage 	in a work slowdown, 	work stoppage, 	strike" 	or other job
action. 	Mr. 	McCall 	testified that, 	like the others, 	this
provision also 	survives 	the 	expiration of 	the 	MOU as 	a practice.
He 	testified that 	in 1997, 	some unit 	7 	employees working 	for the
CHP disclosed plans 	for a 	job action against 	the 	CHP. 	He 	said
CHP managers 	became 	aware 	of 	the planned 	job action. 	They
contacted Mr. 	McCall 	and, 	citing section 5.1, 	told him of 	their
belief 	the 	action would be 	illegal 	and asked 	for his 	assistance
to stop the 	employee 	action. 	Mr. 	McCall 	testified that 	he 	agreed
with 	the 	CHP view 	that 	the 	action was 	prohibited by the 	expired
MOU and 	succeeded 	in getting the 	employees 	to 	call 	it 	off.
Finally, 	section 20.1, 	the 	"Entire Agreement" 	provision of
the 	expired MOU, 	contains 	a waiver of 	the 	right 	to bargain over
matters 	covered 	in 	the MOU 	"for 	the 	duration of 	the 	Contract."
Section 	20.1 	also provides 	that 	"during 	the 	term of 	this
12

Contract" 	the 	State may make 	changes 	in negotiable matters 	not
covered by 	the 	MOU 	subject 	only to 	the 	right 	of 	CAUSE 	to bargain
about 	the 	"impact 	of 	such changes 	on the 	employees 	in Unit 	7."
Mr. 	Navarro 	testified that 	the 	entire 	agreement 	section 	expired
with the MOU, 	a position also 	set 	out 	in the Tirapelle memo of
June 27, 	1995.
The MOU contains a 	"Duration" 	clause which, 	at 	section 20.2,
provides as 	follows:
The 	terms 	of 	this 	agreement 	shall 	go 	into
effect July 1, 	1992, 	and shall 	remain in full
force and effect through June 30, 	1995.
LEGAL 	ISSUE
1. 	Should the underlying unfair practice 	charge be
dismissed 	as 	untimely 	filed?
2. 	If not, 	did the State make a unilateral 	change 	in a
negotiable practice when 	it 	refused to pass 	on to unit 	7 members
increases 	in 	travel 	expense 	reimbursement 	rates 	provided 	to
excluded 	employees?
CONCLUSIONS 	OF 	LAW
Timeliness
The 	State 	argues 	that 	the 	charge must 	be 	dismissed because
it 	is untimely. 	It 	is the State's 	contention that 	if 	its
refusal 	to honor the parity clause was 	a change 	in policy, 	CAUSE
was 	notified about 	the 	change 	at 	a negotiating 	session on
September 18, 	1995. 	During that negotiating session, 	the State
advised 	CAUSE 	about 	an 	impending 	increase 	in reimbursement 	rates
13

for 	excluded employees.4 The 	State 	then 	offered 	the 	same
increases 	to unit members 	as part 	of 	a 	contract 	settlement.
According to the 	State's 	reasoning, 	CAUSE was put 	on notice
of 	its 	refusal 	to honor the parity clause 	by the negotiating
proposal. 	By offering the 	increases 	as 	a negotiating proposal,
the 	State 	argues, 	it 	clearly informed CAUSE 	that unit members
would not 	receive 	the 	increases 	automatically. 	Thus, 	CAUSE was
on notice 	of 	the 	State's 	position regarding 	the 	status 	of 	the
parity 	clause 	and 	the 	statutory period 	of 	limitations 	commenced
to run on September 18, 	1995. 	Since 	the unfair practice 	charge
was 	not 	filed until more 	than two years 	later, 	on October 	21,
1997, 	the 	State 	asserts 	that 	the 	charge was untimely and must 	be
dismissed.
Moreover, 	the 	State 	continues, 	CAUSE received constructive
notice 	through 	the 	promulgation 	of 	administrative 	regulations
that 	the 	change 	actually went 	into effect 	on January 1, 	1996.
The 	State 	notes 	that 	the 	regulations 	were 	filed with the
Secretary of 	State 	and published. 	Therefore, 	the 	State 	reasons,
CAUSE had constructive knowledge on or about 	January 1, 	1996,
that 	the 	change 	already had been made. 	CAUSE 	cannot 	avoid
notice, 	the 	State argues, 	"by failing to review a State
regulation 	it 	knows might 	have 	an 	impact 	on collective bargaining
rights."
4These 	changes were 	the 	$1 per day increase 	in the
reimbursement 	rates 	for non-commercial 	lodging 	and 	for 	long-term
lodging.
14

The 	PERB 	is precluded under 	section 	3514.5(a) 	from 	issuing a
complaint 	based on 	conduct 	that 	occurred more 	than 	six months
prior to 	the 	filing of 	the 	charge.5 The 	Board has 	held that 	the
six-month time period is 	jurisdictional. 	(California State
University 	(San Diego) 	(1989) 	PERB Decision No. 	718-H.)
Timeliness 	cannot 	be 	waived either by 	the 	parties 	or 	the 	Board
itself 	and need not 	be plead affirmatively. 	It 	is 	the 	charging
party's 	burden 	to 	show timeliness 	as part 	of 	its 	prima 	facie
case. 	(Regents of 	the University of 	California 	(1990) 	PERB
Decision No. 	826-H.)
The 	limitations period 	"begins 	to 	run on 	the 	date 	the
charging party has 	actual 	or 	constructive 	notice 	of 	the
respondent's 	clear 	intent 	to 	[engage 	in the prohibited conduct],
providing 	that 	nothing 	subsequent 	to 	that 	date 	evinces 	a wavering
of 	that 	intent." 	(Regents of 	the University of 	California,
supra, 	PERB Decision No. 	826-H.) 	Notice of a proposed change
- -
must 	be 	given 	to 	an official 	of 	an 	employee 	organization who has
the 	authority to act 	on behalf 	of 	the 	organization, 	and the
notice 	must 	clearly 	inform 	the 	recipient 	of 	the 	proposed 	change.
(Victor Valley Union High School 	District 	(1986) 	PERB 	Decision
No. 	565; 	see also State of 	California 	(Board of Equalization)
(1997) 	PERB Decision No. 	1235-S.) 	The 	six-month period is 	to be
5Section 3514.5(a) 	provides 	that 	the Board:
. 	. 	. shall not 	. 	. 	. 	(1) 	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;
15

computed by 	excluding 	the 	day 	the 	alleged misconduct 	took place
and including the 	last day, 	unless 	the 	last 	day is 	a holiday, 	and
then 	it 	also 	is 	excluded. 	(Saddleback Valley Unified School
District 	(1985) 	PERB Decision No. 	558.)
Although the 	State 	contends 	that 	CAUSE was 	on notice 	in
September of 	1995 	about 	impending changes 	that 	would affect
excluded employees, 	I do not 	find support 	for this 	assertion. 	I
find the 	citations 	to 	the 	record set 	out 	in the 	State's 	brief 	to
be 	far more 	equivocal 	than the 	State's 	characterization of 	them.
The document given to CAUSE negotiators on September 18, 	1995,
was 	entitled 	"1995 	Proposed Travel 	Rule 	Revisions 	- 	Summary."6
At 	no place 	does 	the 	document 	explicitly state 	that 	the 	rules
would go 	into effect 	on January 1, 	1996. 	At no place 	in the
testimony of Ms. 	Jordan, 	cited by the State, 	is there an explicit
statement 	by her 	that 	she 	told CAUSE 	negotiators 	that 	the
"proposed" 	rules would go 	into effect 	on January 1, 	1996.
I conclude, 	therefore, 	that Ms. 	Jordan's testimony does not
rebut 	the 	testimony of Mr. 	McCall 	that 	he was never told that 	the
"1995 	Proposed Travel 	Rule Revisions" 	were 	anything but 	a
proposal. 	Nothing 	in the 	record establishes 	that Mr. 	McCall was
given clear notice of a 	firm decision, 	effective January 1, 	1996,
6At 	the meeting of September 18, 	1995, 	CAUSE was given
respondent 	exhibit 	I. 	Respondent 	exhibit 	K, 	the document 	that
sets out 	the proposed effective date of 	January 1, 	1996, 	was
prepared in December of 	1995. 	(See testimony of Ms. 	Jordan,
Reporter's Transcript, 	Vol. 	II, 	p. 	65.) 	This was more than two
months after Ms. 	Jordan's meeting with CAUSE. 	There 	is no
evidence 	to 	establish 	that 	CAUSE was 	ever given 	respondent
exhibit 	K.
16

of 	the 	State's 	intent 	to 	increase 	the 	long-term and noncommercial
rates 	for excluded employees. 	I 	do not 	find it 	unreasonable 	that
Mr. 	McCall 	considered the document 	a proposal 	and not 	notice 	of 	a
certain change. 	I 	conclude 	that 	CAUSE was given no 	actual 	notice
in 	1995 	of 	the 	State's 	decision not 	to 	continue 	application of
the parity clause 	after expiration of 	the MOU.
I 	likewise 	find no 	constructive 	notice 	in 	the 	State's 	filing
of 	rule 	changes 	with the 	Office 	of 	the 	Secretary of 	State 	and
subsequent 	publication by that 	office. 	The 	State 	acknowledges
that 	there 	are 	no 	PERB cases 	which charge 	a party with
constructive 	knowledge 	through the 	adoption of 	a 	regulation. 	A
union 	cannot 	be 	charged with 	responsibility 	to 	monitor 	all
regulations 	adopted by the 	State 	in order 	to discover possible
rule 	changes. 	It 	is 	an employer's obligation to provide notice
of 	any negotiable 	change 	to 	an official 	of 	the 	employee
organization who 	has 	authority to act 	on behalf 	of 	the
organization. 	(Victor Valley Union High School 	District, 	supra,
PERB Decision No. 	565.) 	The State attempts here 	to 	switch the
burden 	so 	that 	a union would have 	to 	engage 	in 	continuous
monitoring of 	regulatory 	filings 	to 	ensure 	that 	it 	did not 	miss 	a
filing deadline. 	This would be 	an unreasonable burden, 	not
required by the 	Dills Act.
Finally, 	I would note 	that 	the proposed rules presented to
CAUSE 	in September of 	1995 	affected very minor 	changes 	in 	travel
reimbursement 	rates. 	They pertained only to the 	rates 	for
long-term travel 	and noncommercial 	lodging. 	These proposed
17

changes 	were 	not 	of 	the 	type 	that 	necessarily would put 	CAUSE 	on
notice 	that 	the 	State was 	repudiating all 	obligation to provide
parity 	to unit 	members 	for 	changes 	in daily travel 	reimbursement
rates 	and mileage 	granted to 	excluded employees.
CAUSE 	learned on July 31, 	1997, 	that 	the 	State would not
be 	giving unit 	members 	increases 	in 	travel 	reimbursement 	rates
that 	it 	had given to excluded employees 	effective 	July 1, 	1997.
CAUSE 	filed the present 	charge on October 21, 	1997, 	well within
the 	six months 	filing period set 	out 	in section 3514.5(a).
Accordingly, 	I 	conclude 	that 	the unfair practice 	charge was
timely 	filed.
Alleged 	Unilateral 	Change
If 	an employer makes 	a pre-impasse 	unilateral 	change 	in an
established, 	negotiable practice 	that 	employer violates 	its 	duty
to meet 	and negotiate 	in good faith. 	(NLRB v. 	Katz 	(1962) 	369
U.S. 	736 	[50 	LRRM 2177].) 	Such unilateral 	changes are 	inherently
destructive 	of 	employee 	rights 	and are 	a 	failure per 	se 	of 	the
duty to 	negotiate 	in good 	faith. 	(Davis 	Unified School 	District,
et al. 	(1980) 	PERB Decision No. 	116; 	State of California
(Department of Transportation) 	(1983) 	PERB Decision No. 	361-S.)
To prevail on a complaint 	of unilateral 	change, 	the
exclusive 	representative 	must 	establish by a preponderance 	of 	the
evidence 	that 	(1) 	the 	employer breached or altered the parties'
written agreement 	or own established past practice; 	(2) 	such
action was 	taken without 	giving 	the 	exclusive 	representative
notice or an opportunity to bargain over the change; 	(3) 	the
18

change was not merely an isolated breach of 	the 	contract, 	but
amounts 	to a change of policy 	(i.e., 	has 	a generalized effect 	or
continuing 	impact 	upon the 	terms 	and conditions 	of 	employment 	of
bargaining unit members); 	and 	(4) 	the change in policy concerns a
matter within the 	scope 	of 	representation. 	(Grant 	Joint 	Union
High School District 	(1982) 	PERB Decision No. 	196 	(Grant); 	State
of 	California 	(Department 	of 	Forestry and Fire 	Protection) 	(1993)
PERB Decision No. 	999-S.)
Here, 	CAUSE argues, 	the State made a unilateral 	change when
"DPA arbitrarily 	decided 	to 	increase 	per 	diem 	and 	travel
reimbursement 	to 	excluded employees 	but 	not 	for employees 	in
Unit 	7." 	The State made the change, 	CAUSE continues, 	without
notice 	to 	CAUSE. 	The 	change 	had a generalized effect 	on members
of 	the unit, 	CAUSE asserts, 	and it affected a negotiable matter,
pay. 	It 	is 	clear in the 	testimony of 	all witnesses, 	CAUSE
contends, 	that 	section 12.1(n) 	continued in effect 	after the
expiration of 	the MOU. 	This 	is 	true because of 	the 	interaction
of 	the 	Tirapelle memo, 	the 	expired MOU and the 	three 	successive
one-year 	interim agreements. 	Because 	section 	12.1(n) 	was 	not
identified 	in 	the 	Tirapelle 	memo 	as 	a 	working 	condition 	that
would cease, 	CAUSE argues, 	it was 	effectively continued by the
interim agreements. 	"Common 	sense 	dictates 	that 	both DPA and
CAUSE had intended to continue 	this Article," 	CAUSE asserts.
Finally, 	CAUSE argues, 	the Court of Appeal 	resolved the
question of 	whether 	the phrase 	"during the 	term of 	this
agreement" 	constitutes a waiver of 	the 	right 	to bargain 	in
19

California State Employees' 	Association, 	CSU Division, 	SEIU Local
1000, 	AFL-CIO v. 	Public Employment Relations Board 	(1996) 	51
Cal.App.4th 923 	[59 	Cal.Rptr.2d 488] 	(CSEA). 	CAUSE notes that 	in
CSEA, 	the court 	concluded that 	a 	similar phrase, 	"duration of
this 	agreement," 	was 	too vague 	to constitute a waiver of 	a
union's 	right 	to bargain. 	In the absence of a waiver, 	CAUSE
concludes, 	it 	had the 	right 	to bargain before 	the 	State 	refused
to pass 	on 	to unit 	members 	the 	travel 	rate 	increases 	given 	to
excluded 	employees.
The 	State 	characterizes 	as 	a 	"strained 	interpretation"
the 	CAUSE view that 	the 	interim agreements 	can be 	read 	to 	extend
the 	travel 	pay parity clause 	beyond 	expiration of 	the 	MOU.
Describing the 	agreements 	as 	"side 	letters," 	the 	State 	argues
that 	nothing in the 	text 	of 	the 	side 	letters 	even refers 	to
section 12.1(n) 	much less extends the provision. 	The plain
language 	of 	the 	document 	contradicts 	CAUSE'S 	assertions, 	the
State argues.
There was no unilateral 	change, 	the State continues, 	because
the 	policy on parity 	in 	travel 	reimbursement 	rates 	expired with
the MOU. 	There was 	no practice of parity in travel pay that
existed outside 	the MOU, 	the State asserts, 	and when the contract
expired 	the 	State 	had no 	obligation 	to grant parity. 	The 	State
argues 	that 	CSEA bears 	nothing but 	a 	superficial 	similarity 	to
the present 	case. 	Unlike the present case, 	the State contends,
the 	employer 	in 	CSEA had 	a 	long history of 	providing merit 	salary
increases 	to employees. 	In the year the 	employer denied the
20

increases, 	the 	State 	reasons, 	the employer clearly changed what
had been done before. 	Moreover, 	the State continues, 	there was
an 	extensive 	negotiating 	history 	that 	demonstrated 	an 	attempt 	by
the union 	to 	ensure 	that 	unit 	members 	would receive merit 	pay
increases. 	Here, 	the State asserts, 	the negotiating history in
no manner demonstrates 	an effort 	by CAUSE 	to 	ensure 	travel 	pay
parity after 	expiration 	of 	the MOU.
CAUSE asserts, 	and the State does not dispute, 	that 	travel
reimbursement 	rates 	for 	food and lodging, 	and mileage 	for
personal 	automobile 	use 	are 	negotiable 	matters 	under 	section
3516.7 Travel 	and mileage 	reimbursement 	rates 	are 	related to
the 	enumerated 	subject 	of 	wages 	and are 	subjects 	well-suited 	to
the 	mediatory 	influence 	of 	negotiations 	for 	resolution of
disputes. 	There 	is 	no evidence 	that 	obliging the 	State 	to
negotiate 	about 	travel 	reimbursement 	rates 	and mileage 	would
significantly abridge 	the 	State's 	ability to 	exercise 	its
functions. 	I 	conclude, 	therefore, 	that travel reimbursement and
mileage 	rates 	are 	negotiable 	subjects 	under 	section 	3516.8
7Section 	3516 	provides 	that 	under 	the 	Dills Act:
The 	scope 	of 	representation 	shall 	be 	limited
to wages, 	hours, 	and other terms and
conditions of employment, 	except, 	however,
that 	the 	scope 	of 	representation 	shall 	not
include 	consideration of 	the merits,
necessity, 	or organization of 	any service 	or
activity provided by 	law 	or 	executive 	order.
8The 	test 	for determining whether a matter 	is within 	the
scope 	of 	representation 	is 	set 	out 	in Anaheim Union High School
District 	(1981) 	PERB Decision No. 	177. 	(See also, 	Compton
Community College District 	(1990) 	PERB Decision No. 	790; 	State of
California 	(Department of 	Personnel Administration) 	(1991) 	PERB
21

Decision No. 	900-S.)
It 	is 	undisputed that 	the 	State 	did not 	negotiate with CAUSE
about 	its 	decision not 	to pass 	on to unit 	7 members 	the 	increased
travel 	and mileage 	reimbursement 	rates 	it 	granted 	to 	excluded
employees. 	It 	also 	is 	clear that 	the 	decision not 	to pass 	on the
increased rates 	affects 	all 	members 	of 	the 	bargaining unit 	and
will 	have 	a 	continuing impact, 	meeting both of 	the 	alternative
Grant 	tests. 	The 	issue presented by this 	case 	is whether the
State's 	action constituted a 	change 	in the past 	practice.
The 	record reveals 	no 	instance where unit 	7 	members 	ever
have 	been given 	an 	increase 	in 	travel 	and mileage 	reimbursement
rates 	in 	order 	to maintain parity with excluded employees.
If 	such a practice exists, 	therefore, 	it 	is to be 	found not 	in
past 	conduct 	but 	in 	section 	12.1(n) 	of 	the 	expired MOU. 	Section
12.1(n) 	obligates 	the 	State 	to maintain travel 	reimbursement 	rate
parity 	for unit 	members 	with excluded 	employees 	"during 	the 	term
of 	this 	agreement."
The 	"duration" 	language must 	be 	considered 	in 	the 	context 	of
the 	three 	successive 	one-year 	interim agreements 	and the 	June 	27,
1995, 	Tirapelle memo which they incorporate. 	Together with the
expired MOU, 	the 	interim agreements 	and the 	Tirapelle memo 	fix
the working conditions 	during bargaining. 	The 	Tirapelle memo
identified 	which working 	conditions 	would 	continue 	and which
would cease 	after expiration of 	the MOU. 	The memo 	states 	that
except 	for certain specifically listed conditions, 	the 	"salaries,
benefits, 	and other terms 	and conditions 	of 	employment 	of
22

represented 	employees 	in 	bargaining units 	with 	expired 	contracts
will 	remain unchanged so 	long as 	negotiations 	continue."
The 	interim agreements 	reinstate 	for unit 	7 	certain
conditions 	specifically rescinded 	in 	the 	Tirapelle 	memo while
incorporating other terms 	of 	the memo. 	The 	effect 	of 	the 	interim
agreements, 	therefore, 	is to continue working conditions 	set out
in 	the MOU, 	except 	as 	modified by the 	Tirapelle memo 	and 	further
modified by 	the 	specific 	provisions 	of 	the 	interim agreements.
The 	Tirapelle 	memo 	does 	not 	identify 	travel 	reimbursement 	parity
as 	a 	term and condition of 	employment 	that 	will 	cease 	upon
expiration of 	the MOU. 	Neither do the 	interim agreements.
I 	conclude, 	therefore, 	that when read together with the
Tirapelle memo, 	the 	interim agreements 	continue 	the 	parity clause
after the expiration of the MOU. 	This 	finding, 	alone, 	is
sufficient 	for me 	to 	conclude 	that 	the 	State 	failed to negotiate
in good 	faith when 	it 	refused to pass 	onto unit 	members 	the
travel 	reimbursement 	increases 	granted 	to 	excluded employees.
I 	reach 	the 	same 	result 	when 	following 	the 	analytical 	method
employed by the Court 	of Appeal 	in CSEA	----. 	There, 	the 	court
analyzed the 	question of whether the phrase, 	"for the 	duration of
this Agreement," 	constituted a waiver of 	a union's 	right 	to
bargain 	about 	a university employer's 	rescission 	of 	merit 	salary
increases 	after expiration of 	the MOU.
The 	court 	noted that 	"a 	collective 	bargaining agreement 	is
not 	an ordinary contract. 	An employer may not 	change 	terms 	or
conditions 	of 	employment 	after 	expiration of 	such 	an 	agreement
23

until 	it 	affords 	the 	union an opportunity to bargain over 	those
changes." 	(CSEA at 	936.) 	Under PERB precedent, 	the 	court
continued, 	an employer may make 	a unilateral 	change upon contract
expiration only when 	the 	union has 	expressly waived 	its 	right 	to
negotiate 	the 	subject of 	the 	change. 	"However," 	the 	court wrote,
"a waiver will 	only be 	found when 	there 	is 	an 	intentional
relinquishment 	of 	the particular right 	under review, 	and then
only if 	it 	is 	expressed in 	'clear and unmistakable' 	terms 	in the
parties' 	contract." 	(Id. 	at 937.)
-
The 	court 	concluded that 	the 	addition of 	the phrase 	"for 	the
duration 	of 	this Agreement" 	to 	the provision on merit 	salary
adjustments was 	"too general 	and vague" 	for a 	finding that 	"the
parties 	agreed MSA's 	would be 	singled out 	for 	termination 	at 	the
contract 	termination date." 	(Id. 	at 	938.) 	Continuing, 	the court
wrote:
-
All 	the 	terms 	of 	the 	contract 	were 	subject
to the 	same 	'duration of 	this Agreement'
clause 	in 	the 	article 	on 	'Duration and
Implementation.' 	The mere 	repetition of
the phrase 	'duration of this Agreement' 	in
the 	provision 	regarding MSA's 	added 	nothing
to the content or meaning of the phrase. 	. 	.
(Id. 	at 938.)
Concluding 	that 	the phrase 	"for 	the 	duration of 	this
Agreement" 	did not 	constitute 	a 	clear and unmistakable waiver,
the 	court 	examined other 	conduct 	for 	signs 	of 	a waiver. 	Finding
none, 	the 	court 	concluded that 	the university's 	refusal 	to pay
the 	MSAs 	was 	an unlawful 	unilateral 	change 	and reversed the 	PERB.
As 	noted by the 	court, 	the 	requirement 	that 	any waiver of 	a
union's 	right 	to bargain be 	"clear and unmistakable" 	is well
24

established 	in 	PERB 	decisions. 	A waiver of 	an exclusive
representative's 	right 	to 	bargain will 	not 	be 	lightly 	inferred.
(Oakland Unified School 	District 	(1982) 	PERB Decision No. 	236.)
For 	an 	employer 	to 	show that 	an 	exclusive 	representative 	has
waived its 	right 	to negotiate, 	the 	employer must produce 	evidence
of 	either 	"clear 	and unmistakable" 	language 	(Amador Valley Joint
Union High School District 	(1978) 	PERB Decision No. 	74) 	or
demonstrative 	behavior waiving 	a 	reasonable 	opportunity 	to
bargain 	over 	a 	decision not 	already 	firmly made 	by the 	employer.
(San Mateo County Community College District 	(1979) 	PERB Decision
No. 	94.)
A waiver can be 	shown by contractual 	terms, 	by negotiating
history or by 	inaction on 	the 	part 	of 	the 	exclusive
representative. 	(Los Angeles 	Community College 	District 	(1982)
PERB Decision No. 	252.) 	By whichever method, 	however, 	the
evidence 	must 	indicate 	an 	intentional 	relinquishment 	of 	the
union's 	right 	to bargain. 	(San 	Francisco 	Community College
District 	(1979) 	PERB Decision No. 	105.) 	"Contract 	terms will not
justify a unilateral 	management 	act 	on 	a mandatory 	subject 	unless
the 	contract 	expressly or by necessary 	implication 	confers 	such 	a
right." 	(Los Angeles Community College District, 	supra, 	PERB
Decision No. 	252.)
The 	critical phrase 	here, 	"during the 	term of 	this
agreement," 	first 	appeared 	in the 	1992-95 	MOU. 	The 	language was
proposed by the 	State. 	Under the prior agreement, 	the 	travel
reimbursement 	parity 	clause was 	limited to 	two 	specific 	fiscal
25

years, 	1989-90 	and 1990-91. 	The revision changed the 	specific
limitation 	from two 	fiscal 	years 	to 	a more 	general 	limitation to
the 	"term of 	this 	agreement." 	Mr. 	Navarro, 	the 	State negotiator
who proposed the 	change, 	testified that 	he 	wrote 	the 	revision 	for
stylistic 	reasons. 	Both parties 	acknowledge 	that 	the 	effect 	of
the 	change 	in 	language was 	not 	discussed at 	the 	negotiating
table.
The 	expired agreement 	in the present 	case, 	as 	in CSEA,
contained a 	"duration" 	clause 	that 	set 	out 	the 	specific 	period
for which the 	contract was 	to be 	in effect. 	The 	expired
agreement 	in the present 	case, 	as 	in CSEA, 	added the phrase 	"for
the 	duration of 	this Agreement" 	to a contract provision
pertaining to a 	term and condition of 	employment. 	Following the
rationale of 	the 	court 	in CSEA, 	I 	conclude 	that 	the mere
repetition of 	the phrase 	"for the 	duration of 	this Agreement"
added nothing 	to 	the 	content 	or meaning of 	the 	parity clause 	on
travel 	reimbursement 	rates.
Moreover, 	despite Mr. 	Navarro's professed intent, 	I believe
that 	the 	1992 	contractual 	language 	change 	had more 	than 	a
stylistic 	effect. 	A very 	specific 	contractual 	limitation 	to 	two
fiscal 	years was 	replaced by 	language 	that 	was more 	general 	and
vague. 	The 	change 	from the 	two-year 	limitation to 	the 	"duration"
language 	introduced 	ambiguity 	into 	the 	travel 	reimbursement
parity clause.
The 	ambiguity 	is 	reflected 	in Mr. 	Navarro's 	testimony about
the 	effect 	of the 	"duration" 	language. 	The effect of 	the
26

language, 	he testified, 	was that 	"all bets are off" 	after the
expiration of 	the 	MOU and 	changes 	in 	travel 	reimbursement 	for
excluded 	employees 	"wouldn't 	necessarily be 	passed on 	to Unit 	7."
"Wouldn't 	necessarily" 	is not 	a description of 	language 	that
constitutes 	a clear and unambiguous waiver. 	I 	conclude 	that
CAUSE 	has 	not 	waived by contract 	language 	its 	right 	to bargain
over 	the 	State's 	decision not 	to grant 	travel 	reimbursement
parity to 	employees 	in unit 	7.
Neither can 	I 	find waiver 	in 	the 	interim agreements 	through
their 	incorporation of 	the 	Tirapelle 	memo. 	The 	Tirapelle 	memo
does 	state 	that 	there 	"may" 	be 	some 	contract provisions 	which
"may" 	be 	set 	aside 	at 	some 	future 	time 	in addition to 	those 	that
are 	specifically 	identified. 	The 	State 	would 	find waiver 	in 	the
incorporation of 	this warning 	in 	the 	interim agreements.
What 	the Tirapelle memo states, 	specifically, 	is that 	in the
expired MOUs 	" [t]here may be 	additional 	departmental policies 	or
-
contract 	provisions 	which are 	time 	limiting 	that 	may require
-
action." 	(Emphasis 	supplied.) 	The memo does not 	identify which
provisions 	are 	"time 	limiting" 	and its use of 	the 	conditional
word 	"may" 	does 	not 	constitute 	clear and explicit 	notice 	of
intent 	to 	rescind the 	travel 	reimbursement parity clause. 	I
cannot 	find a 	clear and explicit 	waiver of 	CAUSE'S 	right 	to
bargain 	in 	the 	incorporation 	into 	the 	interim agreements 	of 	the
Tirapelle memo's vague warning about 	"additional 	. 	. 	. 	contract
provisions 	. 	. 	. 	that may require action."
27

Nor do 	I 	find waiver by conduct. 	The 	State places much
significance 	in 	the 	failure 	of 	CAUSE 	to protest 	in January of
1996 	when unit 	7 	members 	did not 	receive 	two minor adjustments 	in
travel 	rates 	given to excluded employees. 	By 	failing to protest
that 	action, 	the State asserts, 	CAUSE waived its 	right 	to contest
the present 	change.
The 	rate 	increases 	given 	to 	excluded employees 	in January
of 	1996 	were 	$1 per day in the 	travel 	reimbursement 	rates 	for
non-commercial 	lodging and 	for 	long-term 	lodging. 	State
negotiators on September 18, 	1995, 	presented CAUSE negotiators
with a proposal 	for travel 	rate 	changes 	affecting 	excluded
employees. 	The 	document 	given to 	CAUSE 	identified the 	changes
as 	"proposed" 	and did not 	identify an 	implementation date.
Mr. 	McCall 	testified that 	he 	was 	never 	informed that 	the 	changes
went 	into 	effect 	the 	following January. 	The 	State 	presented no
contradictory evidence 	showing that 	CAUSE was 	informed 	that 	the
"proposed" 	changes 	actually went 	into 	effect.
If 	an employer does 	not 	provide 	adequate 	notice 	of 	an
impending change, 	a union's 	failure 	to request 	bargaining 	is
not 	a waiver.9 The 	sum of 	the union's 	knowledge 	about 	the 	1996
change was 	that 	the 	State was 	considering a modification 	in two
minor 	reimbursement 	rates 	for excluded employees. 	The 	union was
advised of no projected implementation date. 	Mr. 	McCall
testified 	that 	he 	did not 	know 	the 	change 	ever was 	implemented
9California Public 	Sector Labor Relations, 	Matthew Bender,
1997, at paragraph 10.07[3].
28

for excluded employees. 	Since 	the 	State provided no 	evidence
that 	it 	actually 	informed CAUSE 	of 	the 	implementation of 	the 	1996
change 	in travel 	rates 	for excluded employees, 	the 	State 	has 	not
met 	the burden of 	proof 	required to demonstrate 	waiver. 	Absent
notification by the 	State, 	there 	is no reason that 	the union
should have 	known that 	the 	change 	actually was 	put 	into 	effect.
The evidence, 	thus, 	is insufficient 	to establish waiver by
inaction.
I would note, 	finally, 	that 	in their briefs 	the parties
engage 	in a 	discussion about 	other 	clauses 	in 	the 	expired MOU
that 	contain the 	"term of 	this 	agreement" 	clause. 	The most
significant 	of 	these 	clauses 	is 	the 	entire 	agreement 	provision,
Article 	2 0.1, 	which contains a waiver of 	the right 	to bargain
"for the duration of 	the Contract." 	The Tirapelle memo, 	however,
specifically 	identified 	the 	entire 	agreement 	clauses 	of 	all
expiring contracts 	as provisions no 	longer 	in effect. 	The 	three
one-year 	interim agreements 	between 	CAUSE 	and 	the 	State 	do 	not
reinstate 	the 	entire 	agreement provision. 	The 	entire 	agreement
provision, 	therefore, 	is not 	in effect and does not 	constitute a
waiver of 	the 	right 	of 	CAUSE to bargain.
It 	is 	unnecessary here 	to 	consider whether 	any of 	the
practices 	set 	out 	in the 	other provisions 	containing the
"duration" 	language remain in effect.
For these 	reasons, 	and based on the 	record as 	a whole, 	I
conclude 	that 	the 	State 	failed 	to meet 	and 	confer 	in good 	faith
when 	it 	refused to grant members 	of unit 	7 	the 	increase 	in travel
29

reimbursement 	rates 	it 	granted to 	excluded employees 	on July 	1,
1997. 	By this action, 	the 	State violated section 3519(c) 	of 	the
Dills Act. 	Because 	the 	State's 	action 	interfered with the 	right
of 	CAUSE 	to represent 	its members, 	the 	State also violated
section 3519(b). 	Finally, 	because the action had the effect of
denying unit 	7 	members 	travel 	rate 	reimbursement 	increases 	to
which they were 	entitled, 	the 	State's 	action also violated
section 3519(a).
REMEDY
The PERB in section 3514.5 (c) 	is given:
. 	. 	. 	the power to issue a decision and order
directing 	an offending party to 	cease 	and
desist 	from the 	unfair practice 	and to 	take
such affirmative 	action, 	including but 	not
limited to 	the 	reinstatement 	of 	employees
with or without back pay, 	as will 	effectuate
the policies of 	this 	chapter.
The 	State 	has 	been 	found 	in violation of 	its 	duty to meet
and 	confer 	in good 	faith by unilaterally 	rescinding 	a
contractually 	established practice 	requiring parity 	in 	travel
reimbursement 	rates. 	The practice 	unilaterally rescinded by the
State 	required the 	State 	to provide 	to members 	of unit 	7 	all
increases 	in 	travel 	reimbursement 	rates 	given 	to 	excluded
employees.
It 	is 	appropriate 	therefore 	that 	the 	State 	be 	directed to
cease 	and desist 	from making unilateral 	changes 	and 	to 	reinstate
the past practice. 	It also 	is appropriate 	that 	the 	State be
directed 	to make whole 	any members 	of 	unit 	7 	who were 	affected by
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the 	State's 	failure 	to 	increase 	travel 	reimbursement 	rates 	for
unit members.
It 	also 	is 	appropriate 	that 	the 	State be 	required to post 	a
notice 	incorporating the 	terms 	of 	the 	order. 	Posting of 	such a
notice, 	signed by an authorized agent 	of 	the 	State, 	will 	provide
employees 	with notice 	that 	the 	State 	has 	acted 	in an unlawful
manner, 	is 	being required to 	cease 	and desist 	from this 	activity,
and will 	comply with the order. 	It 	effectuates 	the purposes 	of
the 	Dills Act 	that 	employees 	be 	informed of 	the 	resolution of
this 	controversy and 	the 	State's 	readiness 	to 	comply with 	the
ordered remedy. 	(Placerville Union School 	District 	(1978) 	PERB
Decision No. 	69.)
PROPOSED 	ORDER
Upon 	the 	foregoing 	findings 	of 	fact 	and conclusions 	of 	law
and the 	entire 	record in the 	case, 	it 	is 	found that 	the 	State of
California 	(Department 	of 	Personnel 	Administration) 	(State)
violated section 3519 (c), 	(b) 	and 	(a) 	of the Ralph C. 	Dills Act
(Act). 	The 	State violated the Act when it unilaterally rescinded
a 	contractually 	established practice 	requiring 	the 	State 	to
provide 	to members 	of unit 	7 	increases 	in business 	and travel
expenses 	at 	the 	same 	time 	as 	increases 	are provided to 	excluded
employees. 	By rescinding 	the 	practice without 	first 	meeting 	and
conferring with the 	California Union of 	Safety Employees 	(CAUSE),
the 	State 	failed to meet 	and confer 	in good 	faith. 	Because 	this
action had 	the 	additional 	effect 	of 	interfering with 	the 	right 	of
CAUSE 	to 	represent 	its members, 	the 	failure 	to meet 	and confer 	in
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good faith also violated section 3519(b). 	Because 	the 	action had
the 	further effect 	of denying unit 	7 	members 	travel 	rate
reimbursement 	increases 	to which they were 	entitled, 	the 	State's
action violated section 3519(a).
Pursuant to section 3514.5(c) 	of the Government 	Code, 	it
hereby 	is 	ORDERED 	that 	the 	State 	and 	its 	representatives 	shall:
A. 	CEASE AND DESIST 	FROM:
1. 	Unilaterally rescinding 	the 	contractually
established practice 	that 	required 	the 	State 	to provide 	to
members 	of unit 	7 	all 	increases 	in travel 	and mileage
reimbursement 	rates 	given 	to 	excluded 	employees;
2. 	By the 	same 	conduct, 	interfering with the 	right
of 	CAUSE 	to represent 	its members;
3. 	By the 	same 	conduct, 	interfering with the 	right 	of
members 	of unit 	7 	to participate 	in the 	activities 	of 	an employee
organization.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE 	THE 	POLICIES 	OF THE ACT:
1. 	Effective 	immediately upon 	service 	of 	a 	final
decision in this matter, 	reinstate 	for unit 	7 members 	the
contractually established practice 	requiring 	the 	State 	to 	provide
to members of unit 	7 	increases 	in business 	and travel 	expenses 	at
the 	same 	time 	as 	increases 	are provided to excluded employees.
2. 	Within thirty 	(30) 	workdays of 	service of 	a 	final
decision 	in this matter, 	make whole 	any unit 	7 member who
incurred 	financial 	loss 	as 	a 	result 	of 	the unilateral 	rescission
of 	the 	contractually 	established practice 	requiring parity 	for
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business 	and travel 	expense 	reimbursement, 	including mileage.
This 	reimbursement 	shall 	be 	augmented by 	interest 	at 	the 	rate 	of
seven 	(7) 	percent per year.
3. 	Within ten 	(10) 	workdays of 	service of a 	final
decision 	in this matter, 	post 	at 	all work locations where notices
to members of unit 	7 	customarily are posted, 	copies of 	the Notice
attached hereto 	as 	an Appendix. 	The Notice must 	be 	signed by an
authorized agent 	of 	the 	State, 	indicating that 	the 	State will
comply with the 	terms of 	this 	Order. 	Such posting 	shall 	be
maintained for a period of 	thirty 	(30) 	consecutive workdays.
Reasonable 	steps 	shall be 	taken to 	ensure 	that 	the Notice 	is 	not
reduced 	in size, 	altered, 	defaced or covered with any other
material.
4. 	Upon issuance of a final 	decision, 	make written
notification of 	the 	actions 	taken to 	comply with the 	Order 	to 	the
Sacramento Regional 	Director of 	the 	Public 	Employment 	Relations
Board 	in 	accord with 	the 	director's 	instructions.
Pursuant 	to California Code of Regulations, 	title 	8,
section 	32305, 	this 	Proposed Decision 	and Order 	shall 	become
final 	unless 	a party files 	a 	statement 	of 	exceptions 	with the
Board 	itself 	at 	the 	headquarters 	office 	in 	Sacramento within
20 	days 	of 	service of 	this Decision. 	In accordance with PERB
regulations, 	the 	statement 	of 	exceptions 	should 	identify by page
citation or exhibit 	number the portions 	of 	the 	record, 	if 	any,
relied upon for such exceptions. 	(See Cal. 	Code Regs., 	tit. 	8,
sec. 	32300.) 	A document 	is 	considered 	"filed" 	when actually
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received before the close of business 	(5 p.m.) 	on the 	last day
set 	for 	filing 	". 	. 	. o r when sent by telegraph or certified or
Express United States mail, 	postmarked not 	later than the 	last
day set for filing 	. 	. 	. 	." 	(See Cal. 	Code Regs., 	tit. 	8,
sec. 	32135; 	Code Civ. 	P r o c , 	sec. 	1013 	shall apply.) 	Any
statement 	of 	exceptions 	and 	supporting brief 	must 	be 	served
concurrently with 	its 	filing upon 	each party to 	this 	proceeding.
Proof 	of 	service 	shall 	accompany each 	copy 	served on 	a party or
filed with the Board itself. 	(See Cal. 	Code Regs., 	tit. 	8, 	secs,
32300, 	32305 and 32140.)
Ronald E. 	Blubaugh
Administrative 	Law 	Judge
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