State of California (Department of Transportation) (PERB 0361S)

STATE 	OF CALIFORNIA
DECISION 	OF 	THE
PUBLIC EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA 	STATE 	EMPLOYEES'
ASSOCIATION,
Charging 	Party,
v.
STATE 	OF CALIFORNIA 	(Department 	of
Transportation.),
Respondent.
Case No. 	S-CE-107-S
PERB Decision No. 	361-S
November 28, 	1983
Appearances; 	Jeffrey Fine, 	Attorney 	for 	the California State
Employees' Association; 	William M. 	McMillan, 	Attorney 	for 	the
State of California 	(Department of Transportation).
Before Gluck, 	Chairperson; 	Tovar and Burt, Members.
DECISION
BURT, 	Member: 	This case 	is before 	the Public Employment
Relations Board 	(PERB or Board) 	on exceptions 	filed 	by 	the
State 	of California 	(Department 	of 	Transportation) 	(Caltrans)
and California State Employees' 	Association 	(CSEA) 	to the
proposed decision of 	an 	administrative 	law judge 	(ALJ),
attached 	hereto 	and 	incorporated 	by 	reference 	herein. 	The ALJ
found 	that Caltrans violated subsections 	3519(b) 	and 	(c) 	of 	the
State Employer-Employee 	Relations Act 	(SEERA) 	by changing 	its
manner 	of 	coverage 	of 	winter 	snow 	removal 	work 	without
providing 	a 	notice 	and 	an opportunity 	to negotiate 	to CSEA, 	the
exclusive 	representative 	of Caltrans1 maintenance 	employees.
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He 	dismissed 	the 	allegation 	that 	Caltrans 	violated 	subsection
3519(d) 	on 	the 	grounds 	that 	no evidence was presented 	to
support 	that 	allegation. 	He 	further 	dismissed 	the 	allegation
that 	Caltrans 	violated 	subsection 	3518.5 	by 	failing 	to 	grant
release 	time 	to CSEA 	representatives 	for 	attending 	a
negotiating meeting, 	on 	the grounds 	that 	the allegation was 	not
fairly 	raised 	by 	the 	charge or 	litigated 	at 	the 	hearing, 	but
was 	raised 	in 	that 	form 	for 	the 	first 	time 	in CSEA's 	brief.1
1SEERA 	is 	codified 	at Government 	Code 	section 	3512
et 	seq. 	Unless otherwise 	indicated, 	all 	statutory references
are to the Government Code. 	Subsections 3519(b), 	(c) 	and 	(d)
provide as 	follows:
It shall 	be 	unlawful 	for 	the 	state 	to:
(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.
(d) 	Dominate or 	interfere with 	the
formation 	or 	administration 	of 	any 	employee
organization, 	or contribute 	financial or
other 	support 	to 	it, 	or 	in any way encourage
employees 	to join 	any organization 	in
preference 	to another.
Section 3518.5 	provides as 	follows:
A 	reasonable 	number 	of 	employee
representatives 	of 	recognized 	employee
organizations 	shall 	be 	granted 	reasonable
time 	off 	without 	loss 	of 	compensation or
other 	benefits 	when 	formally meeting 	and
N
• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	•
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conferring with 	representatives of 	the 	state
on matters 	within 	the 	scope 	of
representation.
This 	section 	shall 	apply only 	to 	state
employees, 	as defined by subdivision 	(c) 	of
section 	3513, 	and only for periods when a
memorandum of 	understanding 	is 	not 	in effect.
To 	remedy 	the 	violations 	found, 	the ALJ ordered 	that Caltrans
restore 	its 	prior 	method 	of 	staffing 	of 	snow 	removal
operations. 	He 	further 	ordered 	that Caltrans 	cease 	and 	desist
from making 	unilateral 	changes 	in matters 	within 	the 	scope 	of
representation 	and 	that 	it post 	an 	appropriate 	notice. 	He
declined 	to order 	back pay on 	the 	grounds 	that 	it would 	be
impossible 	to 	ascertain 	with 	specificity which 	employees 	were
harmed 	by Caltrans1 violations 	and 	that 	the 	amount 	of 	any 	back
pay ordered 	would 	be 	speculative.
CSEA 	excepted 	to 	the ALJ's 	failure 	to 	find 	a 	section 	3518.5
violation, 	as well as his 	refusal 	to order 	back pay. 	Caltrans
excepted 	to 	the ALJ's 	finding 	that 	it 	violated 	subsections
3519(b) 	and 	(c). 	Caltrans did not except 	to the 	finding 	that
it 	unilaterally modified 	its 	method 	of 	snow 	removal 	staffing.
Rather, 	Caltrans 	contended 	that 	staffing 	decisions 	are 	not
within 	the 	scope 	of 	representation 	under 	SEERA 	as 	a matter 	of
law. 	Further, 	Caltrans contends that, 	as a matter of law,
overtime 	opportunities 	are 	not 	a 	subject 	within 	scope 	under
SEERA.
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We 	have 	reviewed 	the 	record 	as 	a whole 	in 	light of 	the
exceptions 	of 	the parties. 	For 	the 	reasons 	set 	forth below, 	we
affirm 	the 	result 	reached 	by 	the ALJ.
FACTS
We 	find 	the ALJ's 	findings 	of 	fact 	to 	be 	complete 	and 	free
of prejudical 	error. 	We 	further 	note 	that 	no party excepted 	to
the 	factual 	findings 	of 	the ALJ. 	The pertinent 	facts may be
briefly 	summarized 	as 	follows:2
Caltrans has 	the responsibility, 	among other 	things, 	to
maintain 	the 	State's 	highway 	systems. 	This 	includes 	the
responsibility 	to 	keep 	all 	winter 	highways 	clear 	of 	snow.
During 	the 	winter 	months, 	workforce 	requirements 	increase
significantly 	in 	areas 	in which 	snow 	falls. 	To deal with 	these
seasonal 	snow 	removal 	requirements, 	Caltrans 	has 	established 	a
practice 	over 	a number 	of 	years 	of 	transferring 	regular
permanent 	equipment 	operators 	to 	the 	more 	mountainous 	locations
from areas 	in which 	snow removal 	is 	not a 	normal 	function.
Some 	employees 	thus 	transferred 	received 	an 	upgrade 	from 	the
equipment 	operator 	classification 	to 	the 	heavy 	equipment
operator 	classification, 	with 	a commensurate 	increase 	in pay.
Transferees 	also 	received 	extensive 	overtime 	pay 	and 	experience
2AS 	noted 	by 	the ALJ, 	Caltrans 	is 	divided 	into various
districts along geographic 	lines. 	The proof 	in 	this 	case was
limited 	to 	the 	policies 	and 	practices 	of Caltrans 	in Districts
8 and 10. 	Thus, 	we limit our 	findings, 	conclusions, 	and Order
to 	those districts.
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in 	operating 	heavy 	snow 	removal 	equipment which 	enhanced 	their
promotional opportunities. 	Pursuant 	to 	this past practice,
Caltrans 	also 	used 	both 	temporary 	and 	permanent-intermittent
employees 	to 	round 	out 	its 	snow 	removal 	staffing 	during 	the
winter months.
Prior 	to 	the 	1981-82 	snow season, 	Caltrans management
decided 	to 	staff 	the 	snow 	removal 	almost 	entirely 	with
permanent-intermittent 	and 	temporary-intermittent 	employees,
and 	thus 	to discontinue 	the 	temporary 	upgrade 	of 	its 	regular
permanent 	employees. 	This decision 	resulted 	in a 	large 	savings
to Caltrans, 	but deprived permanent 	unit 	employees 	of 	the
increased wages, 	overtime, 	and promotional opportunities noted
above.
Upon 	being 	alerted 	to 	the 	apparent 	change 	in 	staffing
practice 	by employees, 	CSEA held 	a meeting of 	unit members 	from
Caltrans 	District 	10 	in Modesto 	in October 	1981. 	As 	a 	result
of 	that meeting, 	CSEA requested 	a 	negotiating 	session with
Caltrans 	management 	regarding 	snow 	removal 	staffing. 	A
three-member 	committee, 	comprised 	of 	job 	steward Bob Hedrick
and 	unit 	employees 	Paul 	Raggio and 	Pete Daniels, 	was 	named 	to
meet 	with District 	10 	management 	along 	with 	CSEA Staff
Representative William Dale. 	Caltrans 	District 	10 	Labor
Relations 	Officer 	William Todd 	agreed 	to meet 	with 	CSEA on
October 	29, 	1981. 	He 	informed Dale 	that he would meet only
with Dale 	and one 	employee, 	and 	that 	the other 	two could 	not 	be
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admitted 	to 	the 	meeting 	or 	released 	from 	their 	work 	duties 	to
attend. 	Caltrans 	did 	not 	approach 	the October 	29 	meeting 	as 	a
negotiating 	session. 	Rather, 	it 	considered 	it 	a meeting 	and
discussion 	session 	at 	which 	it 	would 	inform CSEA of 	its
decision 	regarding 	snow 	removal 	staffing 	and 	listen 	to 	CSEA's
concerns. 	At 	the October 	29 	meeting, 	the CSEA 	representatives
complained 	to 	Caltrans 	that 	the 	new 	staffing 	plan 	would 	deprive
full-time 	regular 	permanent 	employees 	of 	wages 	in 	the 	form of
limited-term 	salary upgrades 	as 	well 	as 	overtime pay. 	CSEA
further 	contended 	that 	such 	employees 	would 	forfeit 	enhanced
promotional 	opportunities. 	It 	also 	complained 	that 	safety
would 	be 	compromised 	if 	intermittent 	employees 	were 	used 	rather
than more 	fully 	trained 	permanent, 	regular 	employees. 	Caltrans
representatives 	responded 	that 	no 	change 	had 	occurred 	because
both 	temporary 	and 	permanent 	intermittents 	had 	been 	used 	in 	the
past. 	They further 	noted 	that, 	in their view, 	the 	staffing
matters 	involved 	were 	not 	within 	the 	scope 	of 	representation
under 	SEERA.
Subsequently, 	at 	a November 	6, 	1981 negotiating meeting on
statewide 	issues, 	CSEA 	leadership 	agreed 	that 	a 	written 	demand
for 	negotiating 	regarding 	Caltrans1 change 	in 	snow 	removal
staffing 	policy 	would 	be made 	upon 	representatives 	of 	Caltrans
District 	10. 	Pursuant 	to 	that demand, 	a meeting was 	held on
January 	7, 	1982 	between CSEA's 	committee 	(comprised 	of
Representative 	Carolyn Born 	and 	the 	three 	employees 	designated
at 	the October 	meeting 	of CSEA) 	and 	a Caltrans District 	10
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committee 	(consisting 	of 	Deputy 	District 	Director 	Bjornstad,
Caltrans 	negotiator 	Robert 	Richmond 	and 	Caltrans 	District 	10
Labor 	Relations Officer William Todd). 	The January 7 meeting
closely 	resembled 	the October 	29 	meeting; 	CSEA 	expressed 	its
concerns 	regarding 	the 	change 	in 	staffing policy, 	and Caltrans
repeated 	its 	earlier 	contentions. 	The CSEA 	team 	then 	left 	the
meeting 	to caucus 	and, 	upon 	its 	return, 	stated 	that because 	the
1981-82 	winter 	season was 	half over, 	and 	in 	the 	interest of
avoiding 	disruption, 	CSEA was 	willing 	to 	allow 	the 	staffing
plan 	to continue 	as 	it had 	for 	the 	1981-82 	season. 	This
concession was made conditional 	upon Caltrans' 	agreement 	to
negotiate 	immediately 	regarding 	CSEA's 	proposal 	for 	staffing
the 	82-83 	season. 	Caltrans1 representatives were 	not
interested 	in 	negotiating 	regarding 	that 	proposal 	at 	that
time. 	According 	to 	the 	testimony of Caltrans 	negotiator
Richmond, 	once 	CSEA 	agreed 	to 	allow 	the 	1981-82 	staffing 	plan
to 	stand, 	there was 	no urgency 	in dealing with 	the 82-83 	season
at 	that 	time. 	Because 	the 	condition CSEA placed 	upon agreement
to 	the 	81-82 	staffing plan was 	not met by Caltrans, 	no such
agreement 	was 	consummated.
DISCUSSION
As established 	by 	the 	record, 	found 	by 	the ALJ, 	and 	not
excepted 	to by 	either party, 	Caltrans 	unilaterally changed 	its
long-standing 	staffing 	practice 	of 	temporarily 	upgrading 	and
transferring 	regular 	full-time 	equipment 	operators 	for 	snow
removal work. 	This 	unilateral 	change 	deprived 	those 	employees
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of 	wages 	which 	they 	would 	have 	received, 	both 	in 	the 	form of
temporarily 	increased 	base 	pay 	due 	to 	the 	upgrade 	and 	in 	the
form of 	overtime. 	Caltrans 	does 	not 	deny 	that 	it 	unilaterally
changed 	its 	practice 	regarding 	winter 	snow 	removal 	staffing,
nor 	does 	it 	deny 	that, 	in 	so doing, 	it 	deprived 	affected 	unit
employees of 	wages. 	Rather, 	it 	bases 	its 	exception on 	the
contention 	that, 	as 	a matter 	of 	law, 	the 	issue 	of 	whether 	to
staff 	an 	operation 	by 	the 	transfer 	of 	existing 	employees 	or 	to
hire 	new 	ones 	is 	outside 	the 	scope 	of 	representation 	under
SEERA due 	to 	the 	proviso 	to 	section 	3516.3
3 The 	scope 	of 	representation 	under 	SEERA 	is 	set 	forth 	at
section 	3516 which, 	at 	the 	time 	this 	case 	arose, 	provided 	as
follows:
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.
This 	section has 	been amended, 	effective July 	21, 	1983, 	to
provide 	as 	follows:
The 	scope 	of 	representation 	shall 	be 	limited
to wages, 	hours, 	and other 	term and
conditions of employment, 	except, 	however,
that 	the 	scope 	of 	representation 	shall 	not
include 	either 	of 	the 	following:
(a) 	Consideration of 	the merits, 	necessity,
or 	organization 	of 	any 	service 	or 	activity
provided 	by 	law 	or 	executive 	order.
(b) 	The 	amount of 	rental 	rates 	for
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state-owned 	housing 	charged 	to 	state
employees.
The 	substantive 	effect 	of 	this 	amendment 	is 	to 	render
rental 	rates 	for 	state-owned 	housing 	outside 	scope; 	said
amendment has 	no effect 	upon 	the 	instant 	case.
The 	statutory 	scope 	language 	of SEERA parallels 	that 	of 	the
National Labor 	Relations Act 	(NLRA).4 Section 8(d) 	of 	the
NLRA 	requires 	good 	faith 	negotiations 	regarding 	" . . . 	wages,
hours, 	and 	other 	terms 	and 	conditions 	of 	employment. 	. . . "
Similarly, 	section 	3516 	of SEERA 	limits 	the 	scope 	of
representation to ". 	. 	. wages, hours, 	and other terms and
conditions 	of 	employment 	. . . " 	with 	the 	proviso 	that
" . . . 	consideration 	of 	the 	merits, 	necessity, 	or 	organization
of 	any 	service 	or 	activity provided 	by 	law 	or 	executive 	order"
is outside scope.
This Board 	has 	recently 	ruled 	upon 	the 	scope 	of
representation 	language 	of 	section 	3516. 	In State of
California 	(Department of Transportation) 	(8/18/83) 	PERB
Decision No. 	333-S, we noted:
In 	interpreting 	language 	of SEERA,
cognizance 	should 	be 	taken of 	the 	decisions
of 	the National 	Labor 	Relations Board 	(NLRB)
interpreting 	identical 	or 	similar 	language
in 	the NLRA. 	Fire Fighters v. 	City of
Vallejo 	(1974) 	12 Cal.3d 608. 	In light of
the 	virtually 	identical 	scope 	language 	of
SEERA 	and 	the NLRA, 	PERB 	finds private
sector 	precedent 	regarding 	scope 	to 	be
applicable 	to SEERA cases.
4The NLRA 	is 	codified 	at 	29 	U.S.C. 	152 	et 	seq.
9

This 	case 	provides 	us 	with 	our 	first 	opportunity 	to 	rule 	on
the meaning 	of 	the 	scope 	language 	of SEERA 	in 	a 	fully-litigated
matter.5 It 	is 	thus 	appropriate 	that 	we 	fashion 	and 	state 	a
test 	to guide 	the parties 	in determining whether 	given 	subjects
are within 	scope. 	As noted 	above, 	we 	intend 	to conform our
scope 	determinations 	under 	SEERA 	to 	the 	general parameters 	of
scope 	in 	the private 	sector. 	Fire Fighters v. 	City of Vallejo,
supra.
Initially we 	note 	that 	it 	is 	unnecessary 	to apply a 	test 	to
certain matters 	which clearly 	fall 	within 	the 	category of 	wages
or 	hours, 	for 	such 	subjects 	are expressly enumerated 	as within
scope 	by 	the 	statute. 	With 	respect 	to other 	subjects 	arguably
within 	the 	less 	precise 	category 	" . . . 	terms 	and 	conditions 	of
employment 	. 	. 	. 	.", 	PERB will find such matters within scope
if 	they 	involve 	the 	employment 	relationship 	and 	are 	of 	such
concern 	to both management 	and 	employees 	that 	conflict 	is
likely to occur, 	and 	if 	the mediatory 	influence of collective
negotiations 	is 	an appropriate means 	of 	resolving 	the 	conflict.
Such 	subjects 	will 	be 	found 	mandatorily 	negotiable 	under
SEERA 	unless 	imposing 	such 	an 	obligation 	would 	unduly 	abridge
the 	State 	employer's 	freedom 	to 	exercise 	those managerial
prerogatives 	(including 	matters 	of 	fundamental policy)
essential 	to 	the 	achievement of 	the State's mission. 	If
5State 	of California, 	(Department of Transportation) 	PERB
Decision No. 	333-S, 	supra, 	involved an appeal of a dismissal.
10

requiring 	negotiations 	on 	a 	subject 	would 	significantly 	abridge
the 	State 	employer's managerial prerogative 	as 	set 	forth 	above,
the 	subject will 	be 	held outside 	the 	scope of mandatory
negotiations.6
The meaning 	of 	the proviso 	to 	section 	3516 	is 	likewise 	an
issue of 	first 	impression 	for PERB. 	We 	note 	that 	its 	language
is 	identical 	to 	the proviso 	to 	the 	scope of 	representation
language 	of 	the Meyers-Milias-Brown Act 	(MMBA) 	which 	governs
employer-employee 	relations 	in California 	local 	government
jurisdiction.7
In 	interpreting 	the 	identical proviso 	language 	of 	the MMBA,
in Fire Fighters v. 	City of Vallejo, 	supra, 	the California
Supreme 	Court 	concluded 	that 	the 	Legislature 	included 	the
proviso 	language
. 	. 	. 	not to restrict bargaining or matters
directly 	affecting 	employees' 	legitimate
interests 	in wages, 	hours and working
conditions 	but 	rather 	to 	forestall 	any
expansion of 	"wages, 	hours and working
conditions" 	to 	include more general
6The 	scope 	test 	enunciated 	above 	parallels 	that
promulgated 	by PERB 	for 	subjects 	not 	specifically 	enumerated
under 	the Educational Employment Relations Act. 	That 	test was
recently 	cited 	with 	approval 	by 	the California 	Supreme Court 	in
Healdsburg Unified School District, 	et al. 	v. 	PERB 	(May 1983)
33 Cal.3d 850 	[ 	Cal Rptr. 	].
7 MMBA	7MMBA 	is 	codified 	at Government Code 	section 	3500
et seq. 	Section 3504 of 	that 	statute provides 	as 	follows:
The 	scope 	of 	representation 	shall 	include
all matters 	relating 	to 	employment
conditions 	and 	employer-employee 	relations,
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including, 	but not 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.
managerial policy decisions 	. 	. 	. 	the
underlying 	fear 	that 	generated 	this 	language
- that is, 	that wages, 	hours and working
conditions 	could 	be 	expanded 	beyond
reasonable 	boundaries 	to 	deprive 	an 	employer
of 	his 	legitimate management prerogatives 	-
lies 	imbedded 	in 	federal precedents 	under
the NLRA.
Thus, 	the Court 	held 	that 	federal precedent 	regarding
managerial prerogatives 	was 	applicable 	to 	the 	proviso 	language
of 	the MMBA which 	is 	substantially 	identical 	to 	that 	of 	SEERA.
We 	view 	the 	proviso 	language 	of 	section 	3516 	as 	essentially
a 	codification of 	the portion of 	the 	scope 	test 	adopted 	by 	the
Board 	and 	set 	forth 	above 	which 	removed 	essential 	managerial
prerogatives 	from 	scope.
Applying 	that 	test 	to 	the 	subject matter 	at 	hand, 	we 	hold
that 	the 	staffing practice 	at 	issue herein 	is 	itself
negotiable. 	Clearly, 	it 	involved 	the employment relationship.
The 	manner 	of 	assignment 	of 	employees 	to perform 	snow 	removal
work 	necessarily 	affected 	matters 	of 	concern 	to 	employees,
including workload, 	wages 	in 	the 	form of overtime 	and
classification 	upgrade 	and 	safety. 	Just 	as 	clearly, 	the manner
of 	staffing 	of 	the 	operation was 	of 	concern 	to management,
which 	sought 	to 	save money. 	The 	interests 	of 	employees 	and
12

management were 	at odds on 	the 	subject, 	and 	the dispute 	is one
which 	was 	amenable 	to 	the 	mediatory 	influence 	of 	collective
negotiations.
The 	method 	of 	the 	staffing 	of 	winter 	snow 	removal
necessarily 	affects 	other 	mandatorily 	negotiable 	terms 	and
conditions 	of 	employment. 	The 	method 	unilaterally chosen 	by
Caltrans 	would 	deprive 	regular 	full-time 	employees 	of 	their
opportunity 	for 	overtime, 	a 	subject which we have 	expressly
held 	within 	scope. 	State 	of California 	(Department 	of
Transportation) 	PERB Decision No. 	333-S, 	supra; Willamette
Industries, 	Inc. 	(1975) 	220 NLRB 707. 	Arguably, 	the new
staffing 	practices 	would 	affect 	safety of 	employees, 	clearly a
matter 	within 	scope. 	Gulf Power Company 	(1966) 	156 	NLRB 	622
[61 LRRM 1073], 	e n f d 	(5th Cir. 	1967) 	384 F.2d 822 	[66 LRRM
2501]. 	The 	new 	staffing method would 	disrupt 	the 	status 	quo
regarding 	transfer 	of 	regular 	full-time 	employees, 	another
subject 	recently held within 	scope 	by 	this Board. 	In State 	of
California 	(Department of Transportation), 	supra, 	we noted 	that
In the private 	sector, 	transfer 	of 	employees
has 	long 	been held within 	scope.
Continental Insurance Co. 	v. 	NLRB 	(2d Cir.
1974) 	495 	F.2d 	44 	[86 	LRRM 2003]. 	The
Developing Labor Law, Morris 	(1971) 	p. 	406.
See also Metromedia, 	Inc. 	(1977) 	232 NLRB
486.
Requiring 	the 	state 	employer 	to provide 	the 	exclusive
representative 	with 	notice 	and 	an 	opportunity 	to 	negotiate
prior 	to 	changing 	an 	established 	practice 	regarding 	transfer 	of
13

employees 	would 	not 	usurp 	any 	essential managerial
prerogative. 	No determination 	is 	involved 	as 	to which
functions will be performed, 	or 	to what extent 	they will be
performed. 	The 	employer 	continues 	to perform 	the 	same 	snow
removal 	function, 	to the 	same extent. 	Because 	no essential
managerial prerogative 	is 	involved, 	the 	subject of 	staffing 	is
not 	removed 	from 	the 	scope 	of 	representation 	by 	the 	language 	of
the proviso 	to section 	3516.
For 	the 	reasons 	set 	forth 	above, 	we 	affirm 	the ALJ's
holding 	that 	the 	staffing 	procedures 	at 	issue 	herein 	are within
scope 	under 	SEERA.8 By 	unilaterally 	altering 	those 	staffing
procedures, 	Caltrans violated 	subsections 	3519(b) 	and 	(c).9
8 In 	accord 	is 	Dublin Professional Fire Fighters.
Local 	1885 	v. 	Valley Community Services 	District 	(1975)
45 Cal.App.3d 116 	[119 Cal.Rptr. 	182]. 	In that case, 	involving
an 	interpretation of 	the 	nearly 	identical 	scope 	language 	of 	the
MMBA, 	the court 	held 	that 	an 	employer 	was 	not 	free 	to
unilaterally 	implement 	a 	practice 	of 	utilizing 	temporary
employees 	to perform 	overtime 	work 	which 	had 	customarily 	been
performed by 	its 	regular 	full-time 	employees. 	As 	in 	the
instant case, 	the 	employer's aim in making 	the change was 	to
effect a cost 	savings, 	but 	the effect was 	to deprive 	regular
employees 	of 	their 	customary priority 	in 	seeking 	such 	work.
The 	court 	held 	that 	the 	fact 	that 	the 	employer's 	new policy
might 	be 	preferable 	to 	its 	former 	practice 	did 	not 	excuse 	its
failure 	to communicate 	with 	the 	union 	representative 	of 	the
regular 	employees.
9Because 	we 	find 	the 	staffing 	question 	here 	to be 	within
scope 	under 	the SEERA scope 	test promulgated 	in 	this 	decision,
we 	need 	not 	rule 	upon 	the 	appropriateness 	of 	the ALJ's 	reliance
upon Fibreboard Paper Products Corp. 	v. 	NLRB 	(1964) 	379 U.S.
203 	[57 	LRRM 2609].
14

Having 	found 	that Caltrans 	violated 	subsections 	3519(b) 	and
(c) 	by 	unilaterally altering 	its 	established practice of
staffing 	winter 	snow 	removal 	operations 	by 	allowing 	regular
full-time employees 	to transfer 	to 	snow removal areas, 	we now
turn 	to a discussion of CSEA's 	exceptions.
CSEA excepts 	to 	the ALJ's 	failure 	to 	find 	that, 	by 	refusing
to 	grant 	released 	time 	for 	all 	three 	employees 	designated 	by
CSEA to attend 	the October 	29, 	1981 meeting, 	Caltrans
independently violated subsection 3518.5.
The ALJ 	held 	that 	the 	section 	3518.5 	allegation was 	neither
charged 	nor 	litigated as 	such, 	but 	rather 	was 	raised 	for 	the
first 	time by CSEA 	in its 	brief. 	We affirm that holding, 	for
the 	reasons 	set 	forth 	in 	the 	attached 	proposed 	decision 	at
p. 	16, 	fn 9.
CSEA's 	remaining 	exception 	is 	to 	the ALJ's 	failure 	to order
back 	pay 	for 	regular 	full-time 	equipment 	operators 	who were
deprived 	of 	temporary upgrades 	and 	overtime 	pay 	due 	to
Caltrans' 	new staffing practice. 	As noted above, 	the ALJ
ordered 	Caltrans 	to 	restore 	the 	status 	quo 	by 	reimposing 	its
former 	method 	of 	staffing 	snow 	removal 	operations 	in Districts
8 	and 	10, 	to cease 	and desist 	from making 	unilateral changes,
and 	to post 	an appropriate 	notice. 	Because 	both 	the 	amount of
back 	pay 	and 	the 	identity 	of 	those 	employees 	damaged 	would 	be
so difficult 	to ascertain as 	to be 	speculative, 	the ALJ
declined 	to order 	back 	pay.
15
.

Pursuant to subsection 3514.5(c), 	the Board has broad
remedial powers 	to order 	affirmative 	action 	to 	effectuate 	the
policies of SEERA. 	On 	the 	facts of 	this case, 	we 	find 	that 	the
remedy proposed 	by 	the ALJ 	is 	appropriate. 	We 	decline 	to order
back pay because, 	in these circumstances, 	no clear method
exists 	for 	determining 	which 	regular 	employees 	would 	have
applied 	for 	or 	been 	transferred 	to 	snow 	removal 	duties 	but-for
Caltrans1 unlawful 	unilateral change.
We 	are mindful 	of 	decisions 	of 	the National Labor 	Relations
Board 	(NLRB) 	in which 	back pay has 	been ordered 	in various
circumstances 	in which 	the 	precise 	amount 	was 	difficult 	to
compute. 	See, 	for example, Cities Service Oil Co. 	(1966) 	158
NLRB 	1204 	(overtime 	which 	employees 	would 	have 	received 	absent
unlawful 	transfer 	of unit work); 	International Harvester Co.
(1973) 	204 	NLRB 	191 	(deprivation of more 	lucrative work
assignments). 	In the circumstances of 	the 	instant case, 	unlike
those cited 	above, 	not only would 	the 	amount of 	backpay 	be
difficult 	to ascertain, 	but 	there would 	be 	no way 	to ascertain
the 	identity of 	the 	recipients of 	such 	backpay. 	See, 	in 	this
regard, 	International Longshoremen's Union, 	Local No. 	13 	(1970)
183 	NLRB 	221 	(unlawfully operated 	hiring 	hall; 	impossible 	to
conclude 	which 	employees 	would 	have 	registered 	and 	been
referred out absent 	union's 	unlawful 	system).
The 	hiring 	hall 	cases 	cited 	in 	the 	dissent 	do 	not 	persuade
us 	that 	we 	should 	order 	a 	compliance 	proceeding 	in 	an 	attempt
16

to 	ascertain 	the 	identity of 	the 	proper 	recipients 	of 	backpay
in 	the circumstances of 	this 	case. 	In International
Brotherhood 	of Boilermakers 	(1980) 	253 NLRB 	747 	[109 	LRRM 3296]
and 	in International Association of Bridge, 	Structural 	and
Ornamental Workers, 	Local 433 	(1977) 	228 NLRB 1420, 	aff'd 	(9th
Cir 	1979) 	600 F.2d 770 	[101 LRRM 3119], 	the violation to be
remedied 	was 	the 	improper 	"back-door" 	referral of applicants
for 	employment 	by 	unions 	which 	operated 	exclusive 	hiring
halls. 	In 	those circumstances, 	the 	referrals 	should have 	been
made 	according 	to 	the 	terms 	of 	a 	detailed 	hiring 	hall
arrangement, 	which 	set 	forth with 	specificity the 	criteria 	for
proper 	referral 	to openings 	as 	they became 	available. 	The
particular 	instances 	of 	improper 	referral 	had 	been proven.
Thus, 	it would be possible 	to 	identify with 	specificity which
individuals 	should 	have 	been 	dispatched 	on 	the 	occasions 	in
question 	by 	ascertaining 	that 	they were present 	in 	the 	hiring
hall, 	available 	for work, 	and 	that 	they satisfied 	the express
criteria of 	the hiring hall 	agreement.
In the 	instant 	case, 	however, 	no such express 	criteria were
established 	under 	Caltrans1 practice 	by which 	it 	could 	be
ascertained 	which 	individuals 	would 	have 	been 	accepted 	for 	snow
removal work, 	had 	they been allowed 	to apply. 	Thus, 	we 	find
distinguishable 	the 	hiring 	hall 	cases 	cited 	in 	the 	dissent.
We 	are 	no 	less 	mindful 	than our 	dissenting 	colleague 	of 	the
Board's 	obligation 	to provide 	remedies 	which effectuate 	the
17

purposes of EERA. 	Where 	appropriate, 	we would 	not hesitate 	to
order 	that 	a compliance 	hearing 	be 	conducted 	to 	allow 	the
aggrieved 	charging 	party 	to 	demonstrate 	which 	individuals
should 	receive 	backpay, 	if 	such 	could 	be 	fairly 	ascertained.
In 	the circumstances of 	this case, 	however, 	we 	find 	that any
such 	proceedings 	would 	result 	in 	an 	unduly 	speculative 	award,
and 	hence 	we 	decline 	to order 	backpay.
ORDER
Upon 	the 	foregoing 	facts, 	conclusions of 	law 	and 	the 	entire
record 	in this case, 	it 	is 	found 	that 	the State of California
(Department of Transportation) 	has 	violated 	subsections 	3519(b)
and 	(c) 	of 	the State Employer-Employee Relations Act. 	It
hereby 	is 	ORDERED 	that 	the State 	of 	California 	(Department 	of
Transportation) 	shall:
A. 	CEASE AND DESIST 	FROM:
Making 	unilateral 	changes 	in matters 	within 	the 	scope
of 	representation, 	specifically, 	by deciding 	in Districts 	8 	and
10 	to 	eliminate 	opportunities 	for 	regular 	Caltrans 	employees 	to
obtain 	temporary promotions 	and work 	in 	snow 	removal, 	without
first 	meeting 	and 	conferring 	in 	good 	faith with 	the 	exclusive
representative, California State Employees' Association 	(CSEA).
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE 	THE POLICIES 	OF THE 	SEERA:
1. 	In 	accord with 	the 	practice 	existing 	prior 	to 	the
1981-82 	winter 	season, 	permit 	regular 	Caltrans 	employees 	to
18

volunteer 	for 	work 	in 	snow 	removal 	and 	to 	seek 	and 	obtain
temporary promotions 	into 	such 	higher 	job classifications 	which
the Department may 	need 	to 	have 	filled 	and 	for 	which 	the
persons 	who 	volunteer 	are 	qualified.
2. 	Give 	reasonable 	written 	notice 	and 	the 	opportunity
to meet 	and 	confer 	to CSEA, 	the 	exclusive 	representative of 	its
employees prior 	to 	acting 	upon 	any matter 	within 	the 	scope 	of
representation, 	including 	any decision 	to eliminate 	the
opportunity 	for 	regular 	Caltrans 	employees 	to volunteer 	for
work 	in 	snow 	removal 	and 	to obtain 	temporary promotions 	for
which 	they may 	be 	qualified.
3. 	Within 	thirty-five 	(35) 	days 	following 	the date of
service 	of 	this Decision, 	post 	copies of 	the Notice 	attached 	as
an Appendix 	hereto 	for 	thirty 	(30) 	consecutive 	working 	days 	on
all work 	locations 	within Districts 	8 	and 	10 where 	notices 	to
employees 	are 	customarily placed. 	Reasonable 	steps 	shall 	be
taken 	to 	insure 	that 	this Notice 	is 	not 	reduced 	in 	size,
defaced, 	altered or 	covered 	by any material.
4. 	Written notification of 	the 	actions 	taken 	to
comply with 	this 	Order 	shall 	be made 	to 	the 	regional 	director
of 	the Public Employment Relations Board 	in 	accordance with 	her
instructions.
C. 	All 	other 	allegations 	of 	the 	charge 	are 	hereby
DISMISSED.
Member 	Tovar 	joined 	in 	this 	Decision.
Chairperson Gluck's 	concurrence 	and dissent begins 	on page 	20.
19
-

GLUCK, 	Chairperson, 	concurring and dissenting: 	I concur 	in
the 	finding 	that 	the 	Department's 	action 	violated 	SEERA
subsection 3519(b) 	and 	(c). 	However, 	I find 	to be at least
premature 	the 	majority's 	conclusion 	that 	a 	backpay 	remedy,
which 	it does not otherwise 	reject, 	cannot be determined.
There 	is 	no doubt 	that 	the 	record 	before 	us 	does 	not permit
calculation 	of 	an 	appropriate 	order 	of 	this 	kind. 	It may 	be
that 	the 	identification 	of 	those 	employees 	adversely 	affected
cannot be determined. 	But, 	nothing 	in 	the 	record 	supports 	the
majority's 	dogmatic 	assertion 	that 	the 	difficulty 	in making
such 	a determination would 	render 	an 	award 	speculative. 	The
conclusion 	reached 	by 	the 	administrative 	law 	judge, 	and
followed 	by 	the majority here, 	is 	based more 	on 	the 	absence of
pertinent proof 	than 	on 	the presence of 	supporting 	evidence.
'
Indeed, 	it 	seems 	that 	the calculation of 	the 	total amount
of 	wages 	lost 	by 	the 	permanent 	employees may be possible 	by 	a
reference 	to 	the 	number 	of 	temporaries 	hired 	and 	the 	average
wages of 	the permanents 	at 	the 	time 	in question. 	Further, 	a
Board 	order 	authorizing 	the 	parties 	to 	negotiate 	the 	ultimate
distribution may 	be 	a 	realistic 	approach 	to 	effectuating 	the
Act's purposes 	and 	would 	be 	consistent 	with 	the 	Board's
oft-asserted 	policy 	of 	favoring 	the 	voluntary 	resolution 	of
disputes.
The 	point 	is 	not 	that 	a 	backpay 	order 	must 	finally 	result
or 	that a precise calculation 	is possible, 	but 	that permitting
20

the 	General 	Counsel 	to 	investigate 	the 	matter 	and 	report 	back
to 	the Board 	is preferable 	to a perfunctory disposition of 	the
matter 	of 	remedy. 	As 	the National 	Labor 	Relations 	Board 	has
put 	it:
It may 	be 	that 	the 	General Counsel will 	be
unable 	to 	identify which 	employees 	[were
harmed 	by 	the 	employer's 	unlawful
act]. 	. 	. 	.However, 	I believe that the
General 	Counsel 	should 	have 	the 	opportunity
to attempt 	to do 	so 	in a backpay
proceeding. 	A wrong 	cognizable 	under 	the
Act has been established. 	. 	. 	.To the extent
that 	[the employees] 	have 	lost earnings 	and
benefits 	because 	of 	that discrimination,
they 	should 	be made 	whole. 	International
Association of Bridge, 	Structural and
Ornamental Workers, Local 433, 	(1977) 	228
NLRB 1420.
In enforcing 	this order, 	the 	9th Circuit Court of Appeals
approved 	deferral 	of 	the 	identification of 	the 	injured
employees 	until 	the 	compliance 	stages 	of 	the 	proceeding 	and
rejected 	the 	notion 	that 	the 	difficulties 	the 	General Counsel
may 	have 	in 	identifying 	those 	employees 	made 	a 	backpay 	award
any 	less 	appropriate. 	Even where 	the 	ability 	to 	identify 	the
injured 	employees 	is questionable, 	it 	is 	the NLRB policy 	that
"an effort must 	be made 	at whatever 	the 	cost 	in order 	to
provide 	a 	complete 	remedy." 	International Brotherhood 	of
Boilermakers 	(1980) 	253 NLRB 747, 	763 	[109 LRRM 3296].
In considering 	the 	difficulty 	in determining 	a 	backpay
award 	under 	such 	circumstances 	as 	here, 	the National Labor
Relations 	Board 	stated:
The 	reasonableness 	of 	such 	a 	remedy must
comport 	with 	the Board's 	duty 	to 	bring 	about
'a restoration of 	the 	situation, 	as nearly
21

as 	possible, 	to 	that which 	would 	have 	been
obtained 	but 	for 	the 	illegal 	discrimination.'
* * * * * * * * * * * * * * * * * * * * * *
It 	has 	long 	been 	recognized 	that 	'in
applying 	its 	authority 	over 	backpay 	orders,
the 	Board 	has 	not 	used 	stereotyped 	formulas,
but 	has 	availed 	itself 	of 	the 	freedom given
it 	by Congress 	to attain 	just 	results 	in
diverse, 	complicated 	situations.' 	Anshu
Associates, 	Inc. 	(1978) 	234 NLRB 791, 795.
In Brown & Root, 	Inc. 	(8th Cir. 	1963) 	311 F.2d 447, 	452, 	the
court 	concluded:
[I]n many cases 	it 	is 	difficult 	for 	the Board 	to
determine 	precisely 	the 	amount 	of 	back 	pay 	which
should 	be 	awarded 	to 	an employee. 	In 	such
circumstances 	the Board may 	use 	as 	close
approximations 	as possible, 	and may adopt 	formulas
reasonably 	designed 	to produce 	such 	approximations.
I 	would 	remand 	this 	matter 	to 	the General Counsel 	to
conduct 	such proceedings 	as 	he 	may 	deem appropriate 	to
determine what 	remedy, 	if 	any, 	would be appropriate 	and
pursuant 	thereto, 	to return 	to 	this Board 	his 	recommendations,
22

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. 	S-CE-107-S, 	California
State Employees' 	Association v. 	State of California 	(Department of
Transportation), 	in which all parties had 	the right to participate, 	it
has 	been 	found 	that 	the State 	of California 	(Department 	of
Transportation) 	has violated 	subsections 	3519(b) 	and 	(c) 	of 	the State
Employer-Employee Relations Act 	(SEERA) 	by 	unilaterally 	changing 	its 	past
practice 	of permitting 	regular 	Caltrans 	employees 	to 	volunteer 	for 	work
in 	snow 	removal 	and 	to obtain 	temporary promotions 	into positions 	for
which 	they 	are 	qualified.
As 	a 	result of 	this conduct, 	we 	have 	been ordered 	to post 	this
Notice, 	and we will 	abide 	by 	the 	following:
A. 	CEASE AND DESIST FROM:
Making 	unilateral changes 	in matters 	within 	the 	scope 	of
representation, 	specifically, 	by deciding 	in Districts 8 	and 10 	to
eliminate 	opportunities 	for 	regular 	Caltrans 	employees 	to obtain
temporary promotion 	and 	work 	in 	snow 	removal, 	without 	first meeting 	and
conferring 	in good 	faith 	with 	the 	exclusive 	representative, 	California
State Employees Association 	(CSEA).
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO EFFECTUATE 	THE
POLICIES 	OF THE 	SEERA:
1. 	In 	accord with 	the 	practice 	existing 	prior 	to 	the 	1981-82
winter, 	permit 	regular 	Caltrans 	employees 	to volunteer 	for 	work 	in 	snow
removal 	and 	to 	seek 	and 	obtain 	temporary promotions 	into 	such 	higher 	job
classifications 	which 	the 	Department 	may 	need 	to 	have 	filled 	and 	for
which 	the 	persons 	who 	volunteer 	are 	qualified.
2. 	Give 	reasonable 	written 	notice 	and 	the 	opportunity 	to meet
and confer 	to the 	recognized exclusive 	representative, 	CSEA, 	prior 	to
acting 	upon 	any matter 	within 	the 	scope 	of 	representation, 	including 	any
decision 	to eliminate 	the 	opportunity 	for 	regular 	Caltrans 	employees 	to
volunteer 	for 	work 	in 	snow 	removal 	and 	to obtain 	temporary promotions 	for
which 	they may 	be 	qualified.
STATE 	OF 	CALIFORNIA
(Department 	of 	Transportation)
Dated: 	BY:
Authorized 	Representative
THIS 	IS AN OFFICIAL NOTICE. 	IT MUST 	REMAIN POSTED FOR THIRTY 	(30)
CONSECUTIVE WORKDAYS 	FROM THE 	DATE 	OF 	POSTING AND MUST NOT BE 	REDUCED 	IN
SIZE, 	DEFACED, 	ALTERED, 	OR COVERED WITH ANY OTHER MATERIAL.

STATE 	OF 	CALIFORNIA
PUBLIC EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA 	STATE 	EMPLOYEES'
ASSOCIATION,
Charging 	Party,
v.
STATE 	OF CALIFORNIA
(DEPARTMENT OF TRANSPORTATION),
Respondent.
Unfair 	Practice
Case No. 	S-CE-107-S
PROPOSED 	DECISION
(10/4/82)
Appearances; 	Jeffrey Fine, 	Attorney, 	for 	the California State
Employees Association; 	William M. McMillan, Attorney, 	for 	the
State of California 	(Department of Transportation).
Before Ronald E. 	Blubaugh, 	Hearing Officer.
PROCEDURAL 	HISTORY
Because of 	heavy snowfall, 	it 	is necessary for 	the State
Department 	of 	Transportation 	to 	increase 	its 	wintertime
workforce 	in certain mountainous 	regions. 	During 	the winter 	of
1981-82, 	it 	is alleged here, 	the state 	in two mountain areas
departed 	from 	its 	past 	practice 	of 	temporarily promoting 	and
transferring 	regular 	employees 	and 	met 	its 	winter 	requirements
by hiring part-time 	and 	temporary workers. 	This action, 	the
exclusive 	representative contends, 	affected 	the wages 	and
promotional opportunities 	of 	unit members. 	The 	state denies
that 	it changed 	its past practice, 	arguing 	that 	it 	long has
relied 	upon part-time 	help for 	snow removal. 	In any event, 	the
state 	continues, 	the decision 	about 	how 	to hire 	the workforce
)
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is 	outside 	the 	scope 	of 	representation 	and 	the 	negotiating
obligation 	extends 	only 	to 	the 	effects 	of 	the 	decision. 	As 	to
the 	effects, 	the 	state 	asserts, 	it did 	negotiate.
The 	California 	State 	Employees' 	Association 	(hereafter
CSEA) 	filed 	the charge 	at 	issue on December 	18, 	1981, 	against
the 	State 	of 	California 	(Department 	of 	Transportation)
(hereafter 	Cal Trans, 	Department 	or 	State). 	The charge 	alleges
that 	the 	State 	violated 	State 	Employer-Employee 	Relations 	Act
(hereafter 	SEERA) 	sections 	3519(b) 	and 	(d) 	and
section 	3519.5(0)1 by 	changing 	its 	policy 	in 	Cal 	Trans
1Unless 	otherwise 	indicated, 	all 	references 	are 	to 	the
Government 	Code. 	The 	allegation 	that 	the 	state 	violated
section 	3519.5 (c) 	is 	an obvious 	typographical 	error. 	Section
3519.5 	deals 	only 	with 	unfair 	practices 	committed 	by 	employee
organizations. 	CSEA's 	apparent 	intent 	was 	to 	allege 	that 	the
state 	employer 	failed 	to 	meet 	and 	confer 	in 	good 	faith, 	a
violation of 	section 3519 (c). 	In relevant part, 	section 3519
provides 	as 	follows:
It 	shall 	be 	unlawful 	for 	the 	state 	to:
(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.
(d) 	Dominate 	or 	interfere 	with 	the
formation 	or 	administration 	of 	any 	employee
organization, 	or 	contribute 	financial 	or
other 	support 	to 	it, 	or 	in 	any way encourage
employees 	to 	join 	any 	organization 	in
preference 	to 	another.
2
• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	•
• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	•
2

District 	10 	of 	temporarily promoting 	employees 	for 	assignment
in 	snow 	removal 	and 	instead 	hired 	heavy 	equipment 	operators
from outside 	state 	service. 	The 	charge 	further 	alleges 	that
the Department would 	agree 	to meet 	and 	discuss 	the 	impact 	of
the 	new policy 	and 	that 	when 	a meeting 	was 	held 	early 	in
October 	the 	State 	limited 	the 	CSEA 	committee 	to 	one 	employee
representative.
A complaint was 	issued on February 3, 1982, 	by 	the general
counsel 	of 	the 	Public Employment 	Relations Board 	(hereafter
PERB). 	On February 19, 	1982, 	the Department answered the
charge, 	denying 	that 	the 	hiring 	of 	permanent 	intermittent
employees 	as 	heavy equipment operators 	in District 	10
constituted 	a 	change 	in 	policy 	and 	asserting 	that 	it 	long 	has
hired 	such 	employees. 	The Department also denied 	that 	it 	had
refused 	to meet 	and 	confer 	in 	good 	faith.
On March 	31, 	1982, 	CSEA amended 	the charge by adding
allegations 	that 	the State 	had 	changed 	its 	past 	practice 	and
hired 	permanent 	intermittent 	heavy 	equipment 	operators 	in
Cal Trans Districts 	3 	and 	8. 	The 	amendment 	alleges 	that 	this
action constitutes 	a change 	from 	the past practice of 	upgrading
regular, 	full-time 	employees 	for 	work 	in 	snow removal. 	The
amendment 	alleges 	that 	the State 	had 	failed 	to meet 	and 	confer
in 	good 	faith 	about 	the 	changes or 	the 	impact 	they might 	have
on unit 	employees. 	On April 9, 	1982, 	the hearing officer 	then
processing 	the 	charge 	permitted 	the 	amendment 	and 	directed 	the
corresponding 	amendment 	to 	the 	complaint. 	The 	Department
3

answered 	the 	charge on April 	20, 	admitting 	that permanent
intermittent employees 	had 	been hired 	in 	the 	two Cal Trans
districts 	but 	denying 	that 	their 	hiring 	constituted 	a 	change 	in
past practice.
A hearing was 	conducted on August 	4, 	1982, 	at 	the PERB's
Sacramento Regional Office. 	The 	final 	brief 	was 	received 	on
September 	15, 	1982, 	and as of 	that date 	the case was 	submitted
for decision.
FINDINGS 	OF 	FACT
The Department 	of Transportation 	is 	the 	state 	agency which
possesses 	and 	controls 	all 	state 	highways 	and 	which 	lays out,
constructs2 and 	maintains3 state 	highways 	and 	freeways.4
For 	administrative purposes, 	the Department had 	divided 	the
state 	into 	11 geographical districts. 	Highway 	construction 	and
maintenance 	is 	budgeted 	and carried 	out on a district 	basis.
The chief 	administrator 	in 	each 	district 	is 	called 	the 	district
director 	of 	transportation 	and 	it 	is 	under 	the 	director's
general 	supervision 	that 	highway maintenance 	is 	carried out 	in
each district.
2streets 	and Highways Code, 	section 90.
3Streets 	and Highways Code, 	section 91.
4Streets and Highways Code, 	section 100.1.
4

One 	of 	the Department's maintenance 	responsibilities 	is 	to
keep 	the various 	all-winter 	highways 	clear 	of 	the 	substantial
amounts 	of 	snow which 	can 	fall 	in California's 	mountainous
regions. 	The Department considers 	six of 	its 	11 districts 	to
be 	in 	snow 	areas.5 The 	snow districts, 	with 	district
headquarters in parenthesis, 	are: 	District 2 	(Redding),
District 3 	(Marysville), District 6 	(Fresno), District 8 	(San
Bernardino), District 9 	(Bishop), and District 10 	(Stockton).
During 	the winter 	months, 	work 	force 	requirements 	increase
significantly 	in 	the snow districts. 	Over 	the years, 	Cal Trans
has 	used 	several 	approaches 	to 	augment 	its mountain 	area
maintenance 	crews. 	In Cal Trans districts which 	include 	both
valley 	and mountain 	terrain, 	the Department 	has 	had 	a practice
of 	shifting 	some 	of 	its 	valley workers 	to 	the mountains 	over
the winter. 	This 	approach 	has 	involved 	both 	the 	temporary
upgrading 	of 	some 	employees 	to 	the 	position of 	heavy equipment
operator 	and 	also 	the 	transfer 	of 	entire 	crews 	of 	heavy
equipment operators 	from 	the 	valley 	to 	the mountains. 	Another
approach 	used over 	the years has 	been 	the 	employment of
permanent 	intermittent 	employees 	who 	are 	hired 	to work 	each
year 	during 	periods 	of 	heavy 	snowfall 	but 	not during 	the 	other
months. 	Permanent 	intermittents may 	return 	year 	after 	year.
Finally, 	the Department 	has 	hired 	temporary employees 	to work
as 	needed on a one-time 	basis.
5The 	snow districts 	are 	listed 	on CSEA Exhibit No. 	6.
5

In 	the Cal Trans maintenance 	series, 	there 	are 	seven
employee 	job classifications: 	Highway Maintenance Worker,
Landscape Maintenance Worker, 	Equipment Operator, 	Heavy
Equipment Operator, 	Highway Maintenance Leadworker, 	Landscape
Maintenance 	Leadworker 	and Maintenance 	Supervisor. 	All 	job
classifications 	require 	possession of 	a 	valid California
driver's 	license. 	Cal Trans 	heavy equipment 	operators must
have 	a class 	I 	chauffeur's 	license. 	Equipment operators must
have 	a 	class 	II 	license 	and 	the 	other 	employees 	need 	only 	an
ordinary class 	III 	operator's 	license.
Because 	Cal Trans 	heavy equipment 	operators 	are 	more 	highly
paid 	than other 	nonsupervisory maintenance workers, 	snow
removal 	with 	its 	attendant 	use of 	heavy 	equipment 	is 	a desired
assignment. 	Employees 	in lower 	classes 	who are 	qualified 	as
heavy 	equipment 	operators 	often 	request 	snow duty 	and 	the
temporary 	promotion 	to 	heavy 	equipment 	operator 	which may
accompany work 	in 	the 	snow. 	Employees 	believe 	that 	by
temporarily operating 	heavy 	equipment 	in 	snow 	removal 	they 	will
enhance 	their 	opportunities 	to 	receive 	permanent 	positions 	as
heavy equipment operators. 	Moreover, 	temporary assignments 	in
higher 	classifications 	bring 	corresponding 	temporary 	5 	percent
increases 	in 	salary. 	Snow work also 	is desired 	because 	it
provides 	the 	chance 	for 	substantial 	amounts 	of 	overtime 	pay 	in
the 	cleanup 	following 	a large 	storm. 	Many Cal 	Trans 	employees
have worked 	voluntarily 	in 	snow 	removal 	for 	a 	number 	of 	years
6
6

and 	have 	come 	to depend on 	snow removal 	assignments 	as 	part 	of
their 	family 	finances.
Snow 	season 	normally 	extends 	from 	approximately 	December 	1
through 	the 	following April 15. 	In 	the past, 	when Cal Trans
districts 	decided 	to 	transfer 	employees 	from 	the 	valley 	to 	the
mountains, 	volunteers were 	recruited. 	A memorandum soliciting
volunteers 	would 	be 	circulated 	in October 	directing 	interested
employees 	to 	apply by a specified 	deadline. 	Persons 	selected
for 	snow duty would 	be 	notified 	in November 	and 	given 	a
specific 	reporting 	date 	and 	location. 	The 	transferred
employees 	would 	be 	housed 	and 	fed 	in Cal 	Trans 	dormitories.
Although 	CSEA 	originally 	charged 	that 	Cal 	Trans 	had 	changed
its past practices 	in Districts 3, 	8 and 10, 	the organization
only presented 	evidence 	about Districts 	8 	and 	10.6 in
essence, 	the evidence establishes 	that 	in both Districts 	8 and
10 	the 	Department made 	a 	calculated 	effort 	to 	reduce 	the
numbers 	of 	valley 	employees 	transferred 	to 	snow 	stations 	and
given 	temporary promotions 	with 	the 	wintertime 	reassignment.
6CSEA, 	in 	the March 	31 amendment 	to 	the charge, 	listed
District 	3 	as 	one 	of 	the districts 	in which 	snow removal
staffing was 	unilaterally changed. 	However, 	in his opening
statement 	at 	the 	hearing, 	counsel 	for CSEA listed only
Districts 	8 	and 10 	as 	locations 	of 	the 	snow staffing 	change.
No evidence was presented 	about District 	3. 	It 	is 	concluded,
therefore, 	that CSEA has 	abandoned 	the 	contention 	that 	a change
was made 	in District 	3 and 	that portion of 	the 	charge 	and
corresponding 	complaint 	is 	dismissed.
7

In place of 	the valley 	employees, 	the 	two districts 	hired
temporary 	and 	permanent 	intermittent 	equipment 	operators.
District 	8 	is 	located 	in 	southeastern California 	and
comprises 	large 	portions 	of 	San Bernardino and 	Riverside
Counties, 	including 	several mountainous 	regions. 	The 	record
establishes 	that, 	among other 	areas, Cal Trans crews perform
snow 	removal 	on Cajon 	Pass 	along 	Interstate Highway 	15 	north 	of
San Bernardino 	and 	along 	Interstate 	10 	and 	State 	Route 	111
between Banning 	and 	Palm Springs.
Over 	the years, 	District 	8 administrators have 	relied
heavily on 	the 	temporary 	promotion 	of 	various 	maintenance
workers 	to 	the 	position of 	heavy 	equipment operator 	for 	service
in 	snow removal. 	In 	the 	1977-78 	snow season, 	the district gave
a 	limited 	term 	upgrade 	to nine 	employees. 	There 	were 	17
limited term upgrades 	in 1978-79, 	60 	in 1979-80, 	23 	in 1980-81
and 	six 	in 	1981-82. 	The parties 	stipulated 	that 	the 	1981-82
snowfall was 	approximately 	average 	in District 	8 	although 	there
was 	a large, 	late 	season storm.
The 	first 	indication 	to District 	8 	employees 	that 	snow
removal might 	be 	handled 	differently 	in 	1981-82 	was 	a Cal 	Trans
newspaper 	advertisement 	for 	experienced 	equipment 	operators
with a class 	I 	chauffeur's 	license. 	Despite 	this 	indication of
a 	change, 	CSEA 	job 	steward John Hughes 	was 	advised 	by a
coworker 	shortly 	thereafter 	that 	he 	had 	been 	offered 	a 	snow
assignment. 	In order 	to clarify the 	situation, Mr. 	Hughes
8

contacted 	a District 	8 	administrator 	and 	asked 	about 	the
position. 	The 	administrator 	responded 	that 	in order 	to 	accept
a 	snow 	assignment 	an 	employee 	first 	would 	have 	to 	resign 	his
regular 	job. 	The 	snow position would 	be 	part-time 	with 	a
guarantee 	of only 	20 hours of work per 	month. 	When Mr. 	Hughes
inquired 	about whether 	this was 	a 	new approach, 	the
administrator 	denied 	that 	it was.
At 	the PERB hearing, 	however, 	Ben Ramirez, 	assistant
maintenance engineer 	for District 	8, 	confirmed Mr. 	Hughes'
suspicions 	that 	the 	district 	had made 	a deliberate 	shift 	away
from 	the 	use 	of 	regular 	employees 	to 	augment 	winter 	crews 	in
the mountains. 	Prior 	to 1981-82, Mr. 	Ramirez testified, 	the
district 	did 	promote valley 	employees 	into 	the 	positions 	of
heavy 	equipment 	operator 	and 	supervisor 	and 	temporarily
reassign 	them to 	the mountains. 	However, 	he continued,
District 	8 entered 	the 	1981-82 	fiscal year 	with 	20 	employees
more 	than 	authorized. 	Some 	kind 	of 	reduction was 	necessary.
Mr. 	Ramirez 	testified 	that 	district 	administrators 	decided
to 	reduce 	the 	number 	of 	employees 	who would 	be 	upgraded 	for
snow work 	and 	to 	use permanent 	intermittent 	and 	temporary
employees 	instead. 	Use 	of 	permanent 	intermittent 	and 	temporary
employees 	is less expensive, Mr. 	Ramirez testified, because the
Department 	can 	limit 	their 	time on 	the 	state 	payroll 	to 	short
periods. 	Because permanent 	intermittents 	were 	guaranteed 	only
two weeks 	of work 	per 	month, 	they could 	be 	released 	from duty
9
9

between 	storms. 	However, 	when permanent 	employees 	are promoted
to higher 	positions 	and 	assigned 	to 	the mountains 	the
Department must 	hire 	replacements 	to work 	in 	the 	valley 	for 	the
entire 	time 	the 	regular 	employees 	are 	absent.
Despite 	its 	deliberate 	intent 	to 	reduce 	the 	reassignment
and 	temporary upgrade of valley employees, Mr. 	Ramirez said
that 	the 	district 	had planned 	to make 	more 	reassignments 	had
the winter 	been 	severe. 	When 	the 	winter 	remained mild 	into
early January, 	he 	testified, 	it was decided 	to make no further
reassignments. 	The testimony of Mr. 	Ramirez 	is credited.
The 	evidence 	indicates 	that CSEA was 	never 	notified 	by 	the
District 	8 management 	that 	there 	would 	be 	changes 	in 	snow
removal 	staffing. 	The 	evidence 	also 	indicates 	that CSEA never
acted 	on 	its 	suspicions 	and 	demanded 	to meet 	and 	confer 	about
the matter.
District 	10, 	the other 	snow district 	about which 	evidence
was presented, 	is 	comprised 	of 	the 	northern San Joaquin Valley
and 	the 	central western 	slope 	of 	the 	Sierra Nevada Mountain
range. 	Among 	the 	areas 	requiring 	snow 	removal 	are State
Route 	4 	to Bear Valley 	and 	State 	Route 	88 	through 	the Carson
Pass. 	A Cal Trans 	dormitory 	for 	snow removal 	crews 	working 	on
State Route 	4 	has 	been maintained 	at Cabbage 	Patch 	in Calaveras
County.
Over 	the years, 	District 	10 has 	used various methods of
meeting 	its 	snow 	removal 	personnel 	needs. 	Among 	these has 	been
10

the 	limited-term upgrade 	of 	regular 	employees, 	the 	lateral
transfer of 	regular 	employees, 	the hiring of 	permanent
intermittent 	employees 	and 	the 	hiring 	of 	temporary 	employees 	to
work 	in 	snow removal. 	The 	record 	reflects 	that 	in 1977-78, 	the
district had 	13 	limited-term upgrades, 	seven 	lateral 	transfers,
28 permanent 	intermittent employees 	and 	nine 	temporary
employees. 	In 1978-79, 	there were 16 limited-term upgrades, 	10
lateral 	transfers, 	29 permanent 	intermittents 	and 	eight
temporary employees. 	In 1979-80, 	there were 	35 limited-term
upgrades, 	nine lateral transfers, 	26 permanent intermittents,
and 11 	temporary employees. 	In 1980-81, 	there were 	31
limited-term upgrades, 	nine lateral 	transfers, 	19 permanent
intermittents and 	23 temporary employees. 	In 1981-82, 	there
were 19 	limited-term upgrades, 	three lateral 	transfers, 	30
permanent 	intermittents 	and 	23 	temporaries. 	The 	parties
stipulated 	that 	1981-82 was 	an above 	average 	year 	for 	snowfall
in District 	8.
As 	with District 	8, 	there was 	no official Cal 	Trans
announcement 	that a change was 	contemplated 	in 	staffing
procedures 	for District 	10 	snow 	removal. 	Rumors 	about a change
began 	to circulate 	among 	employees 	during 	the 	early 	summer 	of
1981. 	The 	first official confirmation 	took place when
employees obtained a copy of an August 	21, 	1981, 	memorandum
from District 	10 Director D. 	L. 	Wieman to W. 	E. 	Schaefer, 	chief
11

of 	the Cal 	Trans 	division of 	operations.7 According 	to 	the
memo, 	District 	10 	intended 	to 	supplement 	its 	mountain crews 	on
7The text of Mr. Weiman's August 21, 	1981, memo reads as
follows:
Winter 	Snow Removal 	Operation
In 	accordance 	with 	our 	recent 	conversation,
this 	is 	to 	inform you of 	our 	plans 	to change
some 	of 	our 	winter 	staffing 	and 	dormitory
arrangements 	at Cabbage 	Patch Maintenance
Station on Route 	4 	in Calaveras County 	for
the coming winter 	season. 	If 	the changes
are 	successful, 	we will most likely continue
in 	future seasons.
The 	following 	changes 	will 	be made 	in
staffing:
1. 	In addition 	to 	the 	regular 	crew at
Cabbage 	Patch, 	we plan to use only
Permanent 	Intermittent 	Heavy 	Equipment
Operators 	for 	storm 	and 	snow 	removal
operations. 	They will work 	an
irregular 	32 	hour 	work week 	to 	cover
evening and 	night 	shifts, 	seven days 	a
week. 	Days off 	will 	be 	staggered to
accomplish 	this. 	As a result, 	we do
not plan 	to 	use 	any 	valley 	crew
personnel 	other 	than 	necessary 	upgrades
for 	Supervisor 	and 	Leadworker.
2. 	We will close 	down 	the cooking
facilities 	in 	the dormitory. 	Employees
will 	be 	expected 	to provide 	their 	own
meals.
3. 	We will pay 	long-term per 	diem 	in 	lieu
of 	providing 	dormitory 	lodging 	and
meals 	for 	winter 	limited-term 	upgrades
to 	Supervisor 	and 	Leadworker.
12

State Route 	4 	through 	the 	use 	of 	permanent 	intermittent
employees 	rather 	than 	by 	the 	temporary promotion 	and 	transfer
4. 	We will 	also close 	the 	dormitory except
for 	those who wish 	to 	rent 	rooms 	in
lieu of 	other 	facilities 	in 	the 	area.
An 	appropriate 	rental 	rate 	will 	be
determined 	and 	the 	employee will 	be
expected 	to provide 	all 	of 	his 	own
services.
By making 	these changes, 	we expect 	to
eliminate 	eight 	(8) 	full-time winter
positions as 	follows: 	two 	(2) 	Highway
Maintenance Workers, 	three 	(3) 	Equipment
Operators, 	two 	(2) 	Cook II's and one 	(1)
Cook 	I.
We 	anticipate 	a 	savings 	of 	approximately
6,600 hours 	(3.7 	P. 	Y.'s) 	and a 	net 	savings
in cost of 	$55,000 which 	includes wages,
State furnished meals, 	laundry service, 	and
mileage 	less per 	diem 	for 	two people. 	This
approximate 	overall 	savings 	was 	based 	on
figures 	taken 	from 	the 	1980-81 	winter 	season
which was 	a 	relatively 	light 	winter.
Another 	advantage 	of 	these 	changes 	is
eliminating 	the 	need 	for 	backfilling 	valley
crew personnel 	(who volunteer 	to work 	in
snow 	removal) 	with 	limited-term personnel.
We 	feel 	that 	closing 	the 	dormitory 	cooking
facilities 	will 	reduce 	winter 	operating
costs considerably, 	but yet give 	adequate
storm coverage 	by 	using 	P.I. 	employees
instead of 	full-time employees. 	We plan 	to
supplement 	lower 	elevation 	coverage 	(Arnold
area) 	with 	regular 	personnel 	from the
Altaville 	yard 	when 	needed.
Eliminating 	the 	dormitory 	cooking 	facilities
and 	not 	using 	valley 	crew personnel 	will
help overcome 	several 	winter 	operations
problems. 	Namely, 	how to handle lodging and
meals 	for 	various personnel will 	be
13

of 	valley 	employees 	to 	the mountains. 	The memo 	also proclaimed
an 	intent 	to end 	food 	service 	at 	the Cabbage 	Patch dormitory
and 	to close 	the 	dorm except 	for 	employees who wished 	to 	rent
it at 	a 	rate 	to be 	established.8 The memo projected 	a
simplified. 	In past years, 	some crew
members 	qualify 	for 	State 	paid 	lodging 	and
meals 	at 	the dormitory 	(valley personnel).
Other 	crew members must 	pay 	for 	lodging 	and
meals 	(if 	they 	reside 	in 	the 	dormitory and
work 	for 	the winter 	season). 	Others are
furnished O.T. 	meals 	if 	they work 	the
qualifying hours per 	shift. 	This causes
dissension 	among 	crew members 	because 	of
varying 	rules 	and policies. 	Using 	P.I.
employees 	that 	know 	they must provide 	their
own meals 	and 	lodging 	(except 	for 	O.T. 	meals
that will be 	eaten at 	local cafes) 	will help
clear 	up 	this 	situation.
Considering 	all 	these 	factors 	and 	the
anticipated monetary savings, 	we 	feel 	using
P.I. 	employees 	is 	the best approach 	for our
winter 	operations.
Should 	this approach 	appear 	to 	be
successful, we would also anticipate
expanding 	it on a limited 	basis 	to Route 	88
in 	the Jackson area 	in future 	seasons.
8In 	its 	brief, 	CSEA alludes 	to 	the closure of 	the
dormitory 	and 	elimination 	of 	food 	service 	at Cabbage 	Patch 	and
argues 	that 	at minimum 	the 	effects 	of 	that 	decision 	are
negotiable. 	In neither 	the original charge nor 	in 	the
amendment 	does 	CSEA raise 	the 	issue of 	whether 	or 	not Cal 	Trans
violated 	SEERA by 	refusing 	to negotiate 	about 	the 	effects 	of
the closure of 	the Cabbage Patch dormitory. 	It 	is concluded,
therefore, 	that 	the 	issue 	of 	the closure 	of 	the dormitory and
its effects 	upon matters 	within 	scope 	is 	not presented 	here.
For 	a 	respondent 	to be 	found guilty of 	an 	uncharged 	violation,
the wrongful 	conduct must 	be 	intimately 	related 	to 	the 	subject
of 	the 	complaint or 	arise 	from 	the 	same 	course 	of 	conduct 	and
the matter 	must have 	been 	fully litigated 	at 	the 	hearing. 	San
Ramon Valley Unified School District 	(8/9/82) 	PERB Decision
No. 	230. 	It cannot be 	said 	that 	the dormitory closure 	is
14

intimately 	related 	to 	the Cal 	Trans 	decision 	to 	use
intermittent 	employees 	in snow removal. 	Nor 	can 	it 	be held
that 	the matter 	of 	the 	dormitory closure 	and 	elimination of 	the
cook 	positions 	was 	fully 	litigated 	at 	the 	hearing. 	For 	these
reasons, 	this proposed 	decision does 	not consider 	whether 	the
closure of 	the Cabbage 	Patch dormitory, 	the 	elimination of 	the
hot 	food 	service 	and 	the 	elimination of 	the 	cook positions 	was
an 	unfair 	practice 	and/or 	whether 	the 	Department 	committed 	an
unfair 	practice 	by 	failing 	or 	refusing 	to meet 	and 	confer 	in
good 	faith 	about 	the 	effects 	of 	that decision 	upon 	unit members.
savings 	of 	$55,000 	for 	the 	collective 	changes 	and 	stated 	that
if 	the changes were successful, 	similar 	actions would be taken
at 	a later 	date 	for 	snow crews working on State Route 	88.
Cal Trans 	maintenance 	employees 	are members 	of 	state
employee 	negotiating 	unit 	12 	for 	craft 	and maintenance
workers. 	CSEA was certified on July 10, 	1981, 	as 	the exclusive
representative 	of 	employees 	in unit 	12 	and 	the organization has
remained 	the 	exclusive 	representative 	continuously 	thereafter.
During 	the 	summer 	of 	1981, 	CSEA held a meeting 	in Modesto which
was 	attended 	by some 60 	to 	70 District 10 	employees. 	The
subject 	of 	snow 	removal 	jobs 	was 	a matter 	of 	intense 	employee
concern 	at 	the meeting 	and 	a 	three-member 	committee, 	consisting
of 	job 	steward 	Bob Hedrick 	and 	CSEA members 	Paul 	Raggio 	and
Pete Daniels, 	was named 	to meet with District 	10 management.
A meeting 	with 	district 	management 	ultimately was 	arranged
for 	October 	29 	by Earl Dale, 	then a CSEA staff 	representative.
Mr. 	Dale asked 	that 	the 	three members of 	the 	committee 	be
released 	from work 	so 	they 	could 	accompany 	him 	to 	the meeting.
However, William Todd, 	District 	10 	labor 	relations 	officer,
15

stated 	that 	only one 	employee 	would 	be 	released 	for 	the 	meeting
and 	the 	two 	other 	employees 	would 	not 	be 	admitted.9
Although CSEA 	scheduled 	the meeting 	with 	the 	intent 	of
negotiating 	about 	the proposed change, 	it 	is clear 	that 	the
District 	10 administrators 	saw 	it only 	as 	an occasion 	for
informing 	CSEA 	about 	what 	already 	had 	been 	decided.
Larry Bjornstad, 	deputy 	district 	director 	and 	principal
department 	spokesperson 	at 	the meeting 	with CSEA, 	testified
that 	the purpose 	of 	the 	session was 	"to 	inform 	them 	[CSEA] 	of
9 In 	its 	brief, 	CSEA 	argues 	that 	the 	refusal 	to grant
released 	time 	or 	otherwise 	permit 	CSEA 	representatives 	Raggio
and Daniels 	to attend 	the October 	29 meeting 	was 	either 	an
unfair 	practice 	or 	an 	admission 	that 	the 	session was 	something
less 	than a meet 	and confer. 	While 	the 	denial of 	released 	time
may 	be 	some 	evidence 	of 	the District 	10 management's 	attitude
about 	the meeting, 	it cannot be 	found 	to be of 	itself 	an unfair
practice. 	In 	its December 	18 statement of 	the charge, 	CSEA
alleged 	that 	the 	"local 	administration 	refused 	to meet with 	a
three-member 	delegation 	selected 	by 	the 	union 	with 	authority 	to
negotiate a 	settlement of 	the charge. 	(Emphasis 	in 	the
original.) 	Paul Flannery, 	Cal Trans 	assistant district
director, 	would only agree 	to meet with 	one 	representative 	from
the union 	. 	. 	. 	while 	insisting on having 	three management
staff present during 	the discussions." 	In context, 	this
allegation 	is 	a 	complaint 	that 	the October 	29 meeting 	did 	not
meet 	the 	statutory 	requirements 	for 	meeting 	and 	conferring 	in
good faith. 	It 	cannot 	be 	construed 	as 	an 	allegation 	that 	the
State 	refused 	to grant 	reasonable 	released 	time 	to 	a 	reasonable
number 	of 	employees 	as 	required by 	section 	3518.5. 	Moreoever,
it cannot 	be 	said 	that 	the 	issue of 	whether 	or 	not 	the State
granted 	reasonable 	released 	time was 	fully 	litigated, 	or
indeed, 	litigated 	at all. 	The 	issue 	raised by CSEA 	in 	its
brief 	does 	not meet 	the 	requirements 	of 	San Ramon Valley
Unified School District, 	PERB Decision No. 	230, 	footnote No. 	8,
supra, 	and 	therefore is not considered 	in 	this proposed
decision.
16

what we planned to do, 	and, 	of course, we listened to 	their
concerns." 	That 	the Department did 	not plan 	to engage 	in 	a
give-and-take 	with CSEA 	is 	further 	illustrated 	by
Mr. 	Bjornstad's 	testimony 	that 	he 	"didn't 	understand
negotiations" 	at 	that 	time 	and 	"would 	have 	been 	highly
reluctant 	to make 	any 	agreements 	without 	headquarters 	approval
because at 	that 	time I 	did not 	know 	the 	rules 	at 	all."
CSEA raised 	a 	number 	of 	concerns 	at 	the October 	29
meeting. 	The 	organization 	complained 	that 	the 	planned 	change
in 	snow 	removal 	staffing 	would 	impact 	upon employee pay 	by
preventing 	employees 	from getting 	temporary 	upgrades 	in 	their
classification 	and 	by 	eliminating 	an 	opportunity 	for 	a
significant 	amount 	of 	overtime 	pay. 	CSEA also 	complained 	that
the 	change 	would 	adversely 	affect 	promotional 	opportunities 	by
removing 	a 	primary method 	by which 	employees 	become 	skilled 	in
the operation of 	heavy equipment. 	Finally, 	CSEA argued 	that
the 	permanent 	intermittent 	and 	temporary workers 	hired 	to work
in 	snow removal would 	be 	less 	safe 	than 	regular 	employees 	in
the operation 	of 	Cal Trans 	heavy 	equipment.
To 	these 	arguments. 	District 	10 	representatives 	responded
that 	the 	use 	of 	permanent 	intermittent 	and 	temporary 	employees
did not constitute 	a change 	because 	the Department 	long 	had
used such 	employees 	in snow removal and, 	in any case, 	the
Department's decision on 	staffing patterns 	is 	not within 	the
17

scope 	of 	representation.10 District 	8 	representatives 	also
explained 	to 	the CSEA 	team 	that 	hiring 	permanent 	intermittent
and 	temporary 	employees 	in 	the mountain 	areas 	was 	easier 	than
transferring 	valley 	employees 	who 	then would 	have 	to 	be
replaced. 	The 	Department 	denied 	altogether 	CSEA's 	concerns
that 	temporary 	employees 	would 	be 	less 	safe 	than 	regular
workers.
During 	the October 	29 meeting 	and 	at 	other 	times, 	Cal 	Trans
representatives 	made 	confusing 	and 	contradictory 	statements 	to
CSEA about 	whether 	the 	Department's 	District 	10 	administration
had 	the 	authority 	to make 	a deal 	with CSEA. 	At 	the October 	29
meeting, Mr. 	Todd of 	the District 	10 	administration told the
CSEA 	team 	that CSEA's 	position on 	snow 	removal 	staffing 	had
statewide 	implications 	and 	was 	not 	negotiable 	at 	the 	district
level. 	On 	the 	same day, 	however, 	the opposite representation
was 	made 	to other 	CSEA 	representatives 	by 	higher-ranking
Cal Trans 	negotiators. 	At a negotiating 	session 	in Sacramento,
Robert Richmond, 	chief Cal 	Trans 	negotiator 	for 	unit 	12
employees, 	told CSEA's chief 	unit 	12 negotiator Rick 	Funderburg
10The 	scope 	of 	representation 	is 	set 	out 	in 	section 	3516
which provides 	as 	follows:
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.
18

that 	the 	impact 	of 	the 	snow 	removal 	staffing 	pattern was 	a
local matter 	which 	local Cal 	Trans 	administrators 	had 	the
authority 	to negotiate.
Subsequently, 	Mr. 	Funderburg discussed 	the matter 	with
District 	10 	administrator 	Todd 	who 	repeated 	his 	position 	that
the 	District 	10 	administration 	had 	no 	authority 	to negotiate
with CSEA. 	Mr. 	Funderburg 	raised 	the 	issue again 	at 	a
November 	6 meeting 	with Mr. 	Richmond 	and 	other 	top Cal 	Trans
negotiators. 	Mr. 	Richmond 	again 	insisted 	that 	the local
Cal 	Trans 	administrators 	had 	the 	authority 	to 	negotiate 	with
CSEA's 	local 	representatives. 	It was 	agreed at 	the November 	6
meeting 	that 	CSEA would make 	a 	formal 	demand 	to meet 	and 	confer
with District 	10 	administrators 	about 	the 	impact 	of 	the planned
change 	upon employees 	within unit 	12. 	This demand was CSEA's
first 	written 	demand 	following 	the 	Department's 	official
notification of 	the planned 	change 	by 	a 	letter 	dated
October 	28, 	1981.11 CSEA 	negotiators 	did 	not 	learn of 	the
October 	28 	letter 	until 	after 	the meeting 	they 	had 	held 	on
October 	29.
11	ll The	The 	letter 	was 	sent 	by Robert Richmond 	of 	the Cal 	Trans
office 	of 	labor 	relations 	to Dan Western, 	CSEA general
manager. 	The letter 	reads 	as 	follows:
This 	is 	to 	inform you 	that Caltrans
District 	10 	(Stockton) 	plans 	to change 	its
staffing 	arrangements 	for 	the 	winter 	snow
removal operations. 	In the past, 	additional
staffing 	needs on 	the 	snow 	removal 	crews
19

were met 	by using 	a combination of 	Permanent
Intermittent 	employees, 	Limited Term
appointments, 	and 	temporary transfers of
personnel 	from valley crews. 	This 	season 	it
is 	anticipated 	that 	all 	heavy 	equipment
operator 	needs 	will 	be 	filled 	by 	using
Permanent 	Intermittent 	employees. 	The
additional 	Caltrans 	Highway Maintenance
Leadworkers 	and 	Supervisors 	needed 	will 	be
provided 	by Limited 	Term 	appointments 	from
the 	appropriate 	employment 	lists.
In addition, 	the 	dormitory and cooking
facilities 	at 	the Cabbage 	Patch Maintenance
Station will 	be closed. 	However, 	we 	believe
there 	are 	sufficient private 	facilities 	in
the 	area 	where 	housing 	and 	food 	service 	are
provided. 	Two employees 	selected 	to fill
the 	limited 	term 	appointments 	for 	leadworker
and 	supervisor 	at Cabbage 	Patch will 	be
provided 	the 	appropriate 	per 	diem 	in 	lieu 	of
being 	provided 	bunk 	house 	and 	meal
facilities.
It 	is 	anticipated 	that 	this plan will 	result
in a 	significant 	savings 	in 	the cost 	of
operations. 	In addition to the 	savings
generated 	by 	not 	operating 	the 	dormitory 	at
Cabbage Patch, 	the District will not be
required 	to 	undergo 	the 	expensive 	and 	time
consuming 	process 	of 	temporarily 	backfilling
vacant 	positions 	created 	when 	a member 	of 	a
valley crew transfers 	to a winter 	crew.
It 	appears 	that 	this plan 	creates 	minimal
impact 	for employees. 	However, 	if you have
concerns which you wish 	to discuss, 	don't
hesitate to 	call 	me 	. . . .
CSEA 	staff 	representative Carolynne 	Born 	sent 	the 	formal
demand 	for 	a meet 	and 	confer 	session 	to District 	10
administrators 	in a letter 	dated December 	8, 	1981. 	The letter
demanded 	"an 	immediate 	meet-and-confer 	session 	regarding 	the
20

use 	of 	permanent 	intermittent 	employees 	for 	snow 	removal during
the 	winter 	season." 	It protested 	that 	even 	though CSEA had
"continually 	expressed 	our 	concerns 	to management 	regarding 	the
potential 	impact 	on our 	represented 	employees," 	management 	had
denied 	rights 	for 	a meet-and-confer 	session 	and 	"prior
notification."
District 	10 	director Wieman 	responded 	by 	a 	letter 	on
December 	11 	in which he 	agreed 	to 	a meet-and-confer 	session.
However, 	Mr. 	Wieman observed 	that 	a meeting already had 	been
held 	about 	the 	subject on October 	29 	and 	that 	advance 	notice
had been given by the October 	28 	letter. 	Nonetheless, 	he
continued, 	even 	though 	he 	believed 	that 	the Department 	had met
its obligations, 	District 	10 	representatives 	would agree 	to
another 	meeting 	at 	a mutually 	convenient 	time.
In accord with Mr. Wieman's commitment, 	a meet-and-confer
session was 	conducted on January 	7, 	1982. 	Representing CSEA
were 	all 	three members of 	the 	committee 	the District 	10
membership had 	appointed 	the previous 	fall, Messrs. 	Hedrick,
Raggio and Daniels, 	along with Ms. 	Born, who by then had
replaced Mr. 	Dale 	as CSEA staff 	representative 	in 	that 	area.
Representing 	District 	10 	were 	Deputy District 	Director
Bjornstad, 	Labor 	Relations Officer 	Todd, 	and Cal Trans Chief
Negotiator 	Richmond 	from Sacramento. 	Mr. 	Richmond 	originally
was described 	as an 	"observer" 	but 	later 	in 	the 	session he
became 	a participant on behalf 	of 	Cal 	Trans.
21

The 	content 	of 	the 	discussion on January 	7 	closely
paralleled 	the meeting 	of 	October 	29. 	CSEA 	expressed 	concerns
about 	the 	impact 	of 	the 	staffing 	change on 	employee 	income 	and
diminished 	opportunity 	for 	promotions 	because 	of 	reduced
opportunities 	for 	operating 	heavy equipment. 	CSEA 	also 	argued
that 	use 	of 	intermittent 	employees 	would 	adversely 	affect 	the
safety 	of 	other 	workers. 	Mr. 	Bjornstad 	rejected 	the 	safety
concern 	but 	indicated 	that 	he 	would 	be 	willing 	to make 	some
training 	assignments 	from 	the 	valley 	to 	the mountains,
consistent with operational 	needs, 	in order 	to meet CSEA
concerns 	about promotions.
Management 	repeated 	its 	assertion 	that 	staffing 	patterns
were 	a managerial decision 	and 	that 	the 	change 	could 	be made
without CSEA consent. 	Nonetheless, 	District 	10 	representatives
did 	explain 	their 	rationale 	for 	the 	decision. 	The Cal Trans
negotiators 	described 	the 	cost 	savings 	which 	the 	use 	of
permanent 	intermittents 	would 	provide 	and 	also 	described 	the
problems which had 	arisen 	in 	backfilling 	the positions 	of
valley 	employees 	transferred 	to 	the mountains.
Ultimately, 	in 	the characterization of Ms. 	Born, CSEA and
Cal Trans District 	10 management 	agreed 	to disagree. 	Following
a 	caucus, 	the CSEA 	team 	returned 	to 	the meeting 	and 	stated 	that
because 	by 	that date 	the 	1981-82 	winter 	was 	approximately half
over 	and 	in 	the 	interest 	of 	not disrupting 	the 	current
operation, 	CSEA was 	willing 	to 	allow 	the 	staffing 	operation 	to
22

remain 	as 	it was 	for 	the 	remainder 	of 	the 	season. 	In 	return
for 	this, 	CSEA requested 	a commitment 	from management 	to
negotiate 	for 	the 	1982-83 	winter 	season. 	CSEA also proposed
several methods 	for 	meeting 	the 	concerns 	raised 	by management.
Among 	these 	was 	a 	percentage 	limit on 	the 	number 	of 	valley
employees 	who could 	be 	transferred 	to 	the mountains 	for 	snow
work 	and 	provision 	for 	the 	training 	of 	employees 	for 	upward
mobility. 	Management did 	not 	respond 	to 	these 	proposals
because, 	in 	the words of Cal Trans negotiator Richmond, 	when
CSEA agreed 	to leave 	staffing 	as 	it was 	in 1981-82, 	"the
urgency of having to deal with those 	issues was 	. 	. 	. 	[at 	that
time] 	not critical."
Following 	the January 7 meeting, Mr. 	Todd and Ms. 	Born
exchanged 	letters 	summarizing 	their 	respective 	views 	of 	the
agreements 	which were 	reached. 	The 	two 	letters 	reflect
substantially 	identical 	views 	about 	the 	outcome 	of 	the
meeting. 	In essence, 	the parties 	agreed 	that 	staffing
decisions 	for 	the 	1981-82 	winter 	had 	been made 	and would 	not 	be
changed 	barring 	unusual circumstances, 	that 	there would be
continued meet-and-confer 	sessions 	with 	regard 	to 	the 	1982-83
season 	about 	those 	aspects 	of 	snow 	staffing 	which 	are 	within
the 	scope 	of 	representation, 	and 	that 	staffing decisions 	would
remain 	with management pending 	the 	resolution of 	statewide
negotiations 	between 	the 	state 	and 	CSEA.
23

LEGAL 	ISSUES
1) 	Was 	the Cal Trans 	decision 	in Districts 	8 	and 	10 	to
shift 	snow 	removal 	jobs 	from 	regular 	to 	intermittent 	and
temporary 	employees,
A) 	A matter 	within 	the 	scope 	of 	representation, 	o r ,
alternatively,
B) 	A 	decision 	affecting 	matters 	within 	the 	scope 	of
representation?
2) 	If 	so, 	did Cal 	Trans 	fail 	to meet 	and 	confer 	in good
faith 	with 	the 	exclusive 	representative 	and 	thereby 	violate
section 3519(b), 	(c) 	and/or 	(d)?
CONCLUSIONS 	OF 	LAW
Scope 	of 	Representation
CSEA 	argues 	that 	the 	Cal 	Trans 	decision 	to 	shift 	snow
removal 	work 	from 	regular 	to 	intermittent 	and 	temporary
employees 	was 	itself 	negotiable. 	In 	support 	of 	this
proposition, 	CSEA 	cites 	federal 	precedent 	under 	the National
Labor 	Relations A c t , 	California 	judicial 	precedent 	under 	the
Meyers-Milias-Brown Act 	(section 	3500 	et 	seq., 	hereafter 	MMBA)
and 	PERB 	precedent 	under 	the 	Educational 	Employment 	Relations
Act 	(section 	3540 	et seq., 	hereafter E E R A ) . 	The 	employee
organization 	contends 	that 	the 	disputed 	Cal 	Trans 	decision 	w a s ,
in 	essence, 	a decision 	to 	reduce 	overtime 	pay 	and 	temporary
promotional 	pay, 	matters 	within 	the 	literal 	language 	of
section 	3516.
24

The 	Department 	argues 	that 	the 	decision 	about 	snow 	removal
staffing was 	a matter 	within 	the 	"merits, 	necessity or
organization" 	of 	a 	governmental 	service 	and 	thus 	not
negotiable. 	The Department contends 	that 	inclusion of 	the
"merits, 	necessity or organization" 	language makes 	the 	scope of
representation 	under 	SEERA more 	narrow 	than 	that 	under 	the
federal labor 	laws. 	There 	is no right to overtime, 	the
Department argues, 	and 	it 	is a managerial 	right 	to schedule
work 	and 	hire 	employees 	in 	a manner 	designed 	to minimize 	the
amount 	of 	overtime 	employees 	work.
Although 	the 	PERB 	several 	times 	has 	considered 	questions
involving 	the 	scope 	of 	representation 	under 	the 	EERA,12 the
Board 	itself 	has 	not 	yet 	interpreted 	the 	differently worded 	and
apparently 	broader 	scope 	language 	in SEERA. 	SEERA provides
that:
(t)he 	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.
Unlike 	the EERA, 	SEERA does 	not 	attempt 	to define 	the
words, 	"terms and conditions of 	employment." 	Rather, 	the
limiting 	factor 	in SEERA 	is 	the 	exclusion 	from meeting 	and
12The 	scope 	of 	representation 	under 	the EERA 	is 	specified
in 	section 	3543.2. 	The PERB's 	approach 	to resolving 	scope
questions 	under 	the EERA can 	be 	seen 	in Anaheim Union High
School District 	(10/28/77) 	PERB Decision No. 	177.
25

conferring 	of 	"consideration 	of the merits, necessity, or
organization" 	of 	a governmental 	service 	or 	activity. 	In 	this
respect, 	the scope provision of SEERA parallels 	the MMBA, 	the
employer-employee 	relations 	law which 	covers 	employees 	of
California 	local 	government 	and 	special 	districts. 	MMBA
section 3504 reads 	as 	follows:
The 	scope 	of 	representation 	shall 	include 	all
matters 	relating 	to employment 	conditions 	and
employer-employee relations, 	including, 	but
not 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.
In 	construing 	the MMBA 	scope 	limitation 	the 	California
Supreme Court 	concluded 	that 	the 	Legislature 	had 	"not
[intended] 	to 	restrict 	bargaining 	on matters 	directly 	affecting
employees' legitimate 	interests 	in wages, 	hours 	and working
conditions 	but 	rather 	to 	forestall 	any 	expansion 	of 	. . .
'wages, 	hours and working conditions' 	to 	include more general
managerial policy decisions." 	Fire Fighters Union v. 	City of
Vallejo 	(1974) 	12 Cal.3d 608, 	616 	[116 Cal.Rptr. 	507]. 	In this
way, 	the court reasoned, 	the MMBA scope 	of 	representation does
not 	differ 	significantly 	from 	the 	National 	Labor 	Relations
Act. 	Although 	the 	federal 	law does 	not 	have 	the 	"merits,
necessity or 	organization" 	language, 	the court noted 	that
federal precedent 	is 	replete 	with 	cases 	holding 	that 	wages,
hours 	and working 	conditions 	cannot 	be 	expanded 	to deprive 	an
26

employer 	of 	legitimate managerial 	prerogatives.13 Thus, 	the
Supreme Court concluded, 	because 	federal decisions 	reflect 	the
same 	interests 	as 	those prompting 	the 	"merits, 	necessity or
organization" 	language, 	"federal precedents provide 	reliable 	if
analogous 	authority on 	the 	issue." 	Fire Fighters Union v. 	City
of Vallejo, supra, 	12 Cal.3d 608, 	617. 	It is clear, 	therefore,
that 	federal precedent 	also 	is 	reliable 	authority for
interpreting 	the 	scope 	provision 	of 	SEERA, 	the Department's
argument 	notwithstanding. 	And, 	because of 	the 	similar 	wording
between 	the 	statutes, 	it also 	is 	concluded 	that California
court 	interpretations 	of 	the MMBA 	are 	persuasive 	precedent 	for
scope 	questions 	arising 	under 	SEERA.
In Fibreboard, 	supra, 	the U.S. 	Supreme Court held as
negotiable 	an 	employer's 	decision 	to 	lay 	off 	certain
l 3See, 	e.g., 	Fibreboard Paper Products Corp. 	v. 	NLRB
(1964) 	379 U.S. 	203 	[57 LRRM 2609] 	in which Justice Stewart's
often-quoted 	concurring 	opinion 	describes 	the 	limit 	on 	the
employer's 	obligation 	to 	bargain with 	these words:
Nothing 	the Court 	holds 	today 	should 	be
understood 	as 	imposing 	a duty 	to 	bargain
collectively 	regarding 	such 	managerial
decisions, which lie at 	the core of
entrepreneurial 	control. 	Decisions
concerning 	the 	commitment 	of 	investment
capital 	and 	the 	basic 	scope 	of 	the
enterprise 	are 	not 	in 	themselves 	primarily
about conditions of 	employment, 	though 	the
effect 	of 	the decision may 	be 	necessarily 	to
terminate employment. 	[57 	LRRM 2617]
27

maintenance 	workers 	and 	contract 	out 	their 	work 	to 	another
company. 	The 	employer's motivation 	for 	this 	change 	was
economic 	and 	there was 	no evidence 	of 	animus 	toward 	the 	union.
The 	court 	concluded 	that 	the 	statutory phrase 	"conditions 	of
employment" 	literally 	covered 	the 	assignment 	of 	work 	to outside
employees 	and 	the 	termination of 	unit members. 	Moreover, 	the
court 	reasoned, 	the 	employer 	merely 	had 	substituted 	one 	group
of workers 	for 	another 	to do 	the 	same 	kind 	of 	work 	in 	the 	same
plant 	with 	no 	alteration 	of 	the 	company's 	basic operation.
Finally, 	the 	court observed 	that 	the 	primary motivation 	for
this change was 	to reduce 	the 	size of 	the workforce, 	decrease
fringe 	benefits 	and 	eliminate overtime payments, 	all matters
long 	regarded 	as 	peculiarly 	suitable 	for 	resolution 	within 	the
framework 	of 	collective 	bargaining.
While 	the Cal Trans decision 	in Districts 	8 	and 	10 does 	not
involve 	subcontracting, 	the parallel with Fibreboard 	is
obvious. 	In essence, 	Cal Trans has 	replaced one group of
workers with 	another. 	There 	is no change 	in 	the Department's
basic operation. 	The 	kind 	of work 	is 	the 	same and 	the 	type 	of
equipment 	used 	is 	the 	same. 	The motivation for 	the decision
was 	purely 	economic 	and 	was 	designed 	to 	reduce 	overtime 	and
other 	costs. 	The decision was 	not, 	in 	the words of Justice
Stewart's 	concurring opinion, 	"at 	the 	core 	of 	entrepreneurial
28

control" 	nor 	did 	it 	involve 	"the 	basic 	scope 	of 	the
enterprise."14
California precedent 	under 	the MMBA 	is 	equally convincing
that 	the Cal Trans 	decision 	itself 	was 	a matter 	within 	the
scope 	of 	representation.15 In 	Dublin Professional 	Fire
Fighters, Local 	1885 v. 	Valley Community Services Dist. 	(1975)
45 Cal.App.3d 116 	[119 Cal.Rptr. 	182] 	a failure 	to meet and
confer 	in 	good 	faith was 	found where 	a public 	employer
eliminated 	the 	possibility of 	overtime 	for 	its 	regular 	fire
fighters. 	Under 	the past practice, 	the fire district 	usually
assigned overtime 	to 	its 	regular 	employees. 	Under 	the 	new
policy, 	however, 	the 	employer 	decided 	to hire 	temporary
employees 	who 	would 	perform 	all 	work 	which 	formerly 	required
regular 	employees 	to work 	overtime. 	The 	court 	of 	appeal
rejected 	the 	employer's 	argument 	that 	its 	decision 	to 	eliminate
overtime was 	outside of 	scope, 	reasoning 	that:
14Contrary 	to 	the Cal 	Trans 	argument 	that 	employees 	have
no 	right 	to overtime, 	a 	unilateral change 	in past-practice
which had 	the 	effect of 	depriving 	drivers 	of 	the 	regular
opportunity 	to work 	overtime 	has 	been 	held 	to 	be 	a 	refusal 	to
bargain. 	Willamette Industries, 	Inc. 	(1975) 	220 NLRB 707 	[90
LRRM 1478] .
15Under 	the MMBA, 	the 	"phrase 	'wages, 	hours, 	and other
terms 	and conditions of 	employment' 	is 	to 	be liberally
construed, 	consistent with 	the 	'generous 	interpretation' 	which
has 	been 	accorded 	it 	in decisions 	dealing 	with 	the 	federal 	law
from which 	it has 	been 	incorporated." 	(Citations 	omitted.)
International Assn. 	of Fire Fighters Union v. 	City of
Pleasanton 	(1976) 	56 Cal.App.3d 959, 	968 	[129 Cal.Rptr. 	68].
29

The 	assignment 	of 	overtime 	work 	to 	temporary
service personnel 	will 	have 	an obvious
effect on 	the 	workload 	and 	compensation 	of
the 	regular 	employees, 	since 	the 	regular
employees 	will 	be deprived 	of 	their
customary priority 	in 	seeking 	such work. 	It
may 	be 	that 	the 	district's 	new policy 	is 	to
be 	preferred 	to 	the 	former 	practice.
Nevertheless, 	the district 	is 	required to
meet 	with 	the 	representatives 	of 	its
employees 	and 	discuss 	their 	grievances
candidly. 	45 Cal.App.3d 116, 	119.
The Cal Trans decision 	in Districts 	8 and 	10 	to 	hire more
intermittent 	and 	temporary 	employees 	had 	the 	direct 	effect 	of
eliminating 	overtime 	pay opportunities 	for 	regular 	employees.
The 	decision 	also 	reduced 	the 	opportunities 	for 	regular
employees 	to obtain 	temporary promotions 	to 	the 	higher-paying
class 	of 	heavy 	equipment 	operator 	with 	accompanying 	5 percent
pay differential. 	The 	effect on wages was 	direct. 	It 	is
concluded, 	therefore, 	that 	the Cal Trans 	decision to shift 	snow
removal 	jobs 	from 	regular 	to 	intermittent 	and 	temporary
employees 	was 	itself within 	the 	scope 	of 	representation.
Alleged 	Failure 	to Meet 	and Confer
CSEA next 	argues 	that Cal Trans 	failed 	to meet 	and 	confer
in 	good 	faith 	about 	its 	decision 	to 	shift 	snow 	removal 	jobs
away 	from 	regular 	employees. 	Citing 	both NLRB precedent 	and
PERB decisions 	under 	the EERA, 	CSEA contends 	that 	the
Department made 	a 	unilateral 	change 	and 	thus 	committed 	an 	act
that was 	per 	se an 	unfair 	practice. 	A unilateral change 	about
30

a matter 	within 	scope 	is 	of 	itself 	a 	failure 	to meet 	and 	confer
in good faith because, CSEA argues, 	it presents 	the employee
organization with a fait accompli. 	Moreover, 	CSEA asserts, 	the
two meet 	and 	confer 	sessions 	which were 	held 	took 	place
after-the-fact 	and management 	entered 	those 	sessions 	with 	a
closed 	mind 	and 	did 	little more 	than 	assert 	that 	snow 	removal
staffing was 	a matter 	outside 	of 	scope.
The Department 	argues 	that 	its 	staffing 	actions 	in
Districts 	8 	and 	10 were 	consistent 	with 	past 	practice 	and 	did
not 	constitute 	a 	change. 	Permanent 	intermittent 	and 	temporary
workers 	long 	have 	been 	employed 	in 	snow removal work, 	the
Department 	continues, 	and 	the 	staffing 	arrangements 	in 	the
1981-82 	snow 	season were 	in 	accord 	with 	that 	long-time
practice. 	Moreover, 	the Department asserts, meet and confer
sessions 	were 	held 	between 	the Department 	and 	CSEA 	and 	those
meetings 	resulted 	in an 	agreement 	which 	satisfied 	any
obligation Cal Trans might 	have 	had 	to meet 	with 	the 	employee
organization.
It 	is 	well-established 	that 	an employer 	which makes 	a
pre-impasse 	unilateral 	change 	about 	a matter 	within 	the 	scope
of 	representation violates 	its 	duty 	to meet 	and 	confer 	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. 	See generally, 	Davis Unified School District
31

(2/22/80) 	PERB Decision No. 	116, 	San Francisco Community
College District 	(10/12/79) 	PERB Decision No. 	105 	and San Mateo
Community College District 	(6/8/79) 	PERB Decision No. 	94.
Moreover, 	before 	an employer 	can make 	a 	unilateral change
affecting 	a matter 	within scope, 	the 	employer must give notice
of 	the 	change 	and 	an opportunity 	to 	negotiate 	to 	the 	exclusive
representative. 	See Delano Union Elementary 	School District
(4/30/82) 	PERB Decision No. 	213 	and cases 	cited 	therein.
These 	principles 	of 	decisional 	law 	are 	fully 	reflected 	in
the 	specific provisions 	of SEERA. 	Section 	3516.5 	requires 	the
state 	employer, 	except 	in cases of 	emergency, 	to give
reasonable 	written 	notice 	and 	the 	opportunity 	to meet 	and
confer 	to 	recognized 	employee 	organizations 	prior 	to 	adopting
any law, 	rule, 	resolution or 	regulation directly 	relating 	to
matters 	within 	scope.16 Section 	3517 	requires 	the 	governor
16Section 	3516.5 provides 	as 	follows:
Except 	in cases 	of 	emergency as 	provided 	in
this section, 	the employer 	shall give
reasonable 	written 	notice 	to 	each 	recognized
employee 	organization 	affected 	by 	any 	law,
rule, 	resolution, or regulation directly
relating 	to matters 	within 	the 	scope 	of
representation 	proposed 	to 	be 	adopted 	by 	the
employer, 	and 	shall give 	such 	recognized
employee 	organizations 	the 	opportunity 	to
meet 	and 	confer 	with 	the 	administrative
officials 	or 	their 	delegated 	representatives
as 	may 	be 	properly designated 	by 	law.
In 	cases 	of 	emergency when 	the 	employer
determines that a law, rule, resolution, or
32

or 	representative 	to meet 	and 	confer 	in 	good 	faith 	with
recognized 	employee organizations 	regarding wages, 	hours 	and
other 	terms 	and 	conditions 	of 	employment 	and 	to consider 	fully
the presentations 	of 	the 	organization 	"prior 	to 	arriving 	at 	a
determination of 	policy or 	course 	of 	action."17
regulation must 	be 	adopted 	immediately
without 	prior 	notice or 	meeting 	with 	a
recognized 	employee organization, 	the
administrative 	officials 	or 	their 	delegated
representatives 	as 	may 	be 	properly
designated 	by 	law 	shall 	provide 	such 	notice
and 	opportunity 	to meet 	and 	confer 	in 	good
faith 	at 	the 	earliest practical 	time
following 	the adoption of 	such law, 	rule,
resolution, or regulation.
Cal Trans 	did 	not meet 	these 	statutory 	requirements 	in
reaching 	and 	implementing 	its 	decisions 	about 	1981-82 	snow
staffing 	in Districts 	8 and 	10. 	Initially, 	the Cal Trans
argument 	that 	it made no change 	is 	rejected. 	While 	it 	is 	true
that Cal Trans 	long 	has 	used 	both 	permanent 	intermittent 	and
temporary employees 	in 	its 	snow 	removal work, 	the Department
also has 	relied 	heavily 	upon 	the 	temporary 	upgrade 	of 	its own
17In relevant 	part, 	section 	3517 	provides:
The Governor, 	or 	his 	representative as may
be 	properly designated 	by law, 	shall meet
and 	confer 	in 	good 	faith 	regarding wages,
hours, 	and other 	terms 	and 	conditions 	of
employment 	with 	representatives 	of
recognized employee organizations, 	and 	shall
consider 	fully 	such 	presentations 	as 	are
made 	by 	the 	employee organization on 	behalf
of 	its members 	prior 	to arriving 	at a
determination of 	policy of 	course 	of
action 	. . . .
33

regular 	employees. 	The 	evidence 	is 	unchallenged 	that 	in
1981-82 	the managers of Districts 	8 	and 	10 	set 	out with 	the
deliberate 	intent 	of 	eliminating 	or 	severely 	reducing 	the 	use
of 	regular 	employees 	on 	temporary assignment. 	The
uncontradicted 	and 	credited 	testimony 	of 	Ben 	Ramirez
establishes 	this 	intent 	in District 	8 and 	the August 21, 	1981
memo of District 	10 Director Wieman 	establishes 	the 	intent 	for
District 	10. 	The 	evidence 	also establishes 	that 	both districts
were 	successful 	in 	implementing 	their 	intent 	and 	actually
reduced 	the 	number 	of 	regular 	employees 	given 	temporary
upgrades 	to work 	in 	snow removal.
The 	evidence 	also establishes 	that 	in 	both Districts 	8 	and
10 	the decision 	to change 	the 	past practice was made 	prior 	to
any 	consultation with 	the 	exclusive 	representative. 	In
District 	8, 	the Department 	never 	informed 	the 	exclusive
representative of 	its 	intent 	to change 	the 	snow removal
staffing 	and 	denied 	that 	a 	change 	was 	occurring 	when 	questioned
by a CSEA 	job 	steward. 	In District 10, the 	decision was 	made
and placed 	in writing 	as 	of 	the August 	21 memorandum. 	CSEA was
not given official 	notice 	of 	the District 	10 	staffing 	change
until 	the October 	28 	letter 	from 	the Department 	to CSEA general
manager Dan Western. 	There 	is 	no evidence 	to 	indicate 	that 	the
decision 	to make 	the 	snow 	removal 	staffing 	change was 	inspired
in 	either 	district 	by 	an 	emergency which precluded 	prior
meeting 	with 	the 	exclusive 	representative.
34

Subsequent 	to 	the 	snow staffing decision, 	District 	10
management 	held 	two meet 	and 	confer 	sessions 	with 	CSEA
representatives. 	These meetings, 	however, were
after-the-fact. 	The decision 	to make 	the 	change 	had 	been made
and 	the Department's principal 	representative 	at 	the meet 	and
confer 	sessions 	testified 	that 	he 	believed 	the purpose 	of 	the
first 	of 	those meetings was 	"to 	inform 	them 	(CSEA) 	of 	what we
planned 	to do." 	As CSEA argues, 	the meetings 	did 	not 	have 	the
indicia 	of 	good 	faith. 	Cal Trans 	did 	not 	approach 	them with 	an
open mind, 	free 	from 	any predetermined 	resolve 	not 	to 	budge.
Placentia Fire Fighters v. 	Placentia 	(1976) 	57 Cal.App.3d 	9
[129 Cal. Rptr. 126].
The Department 	contends 	that 	the 	parties 	reached 	an
agreement 	after 	the 	second meet 	and 	confer 	session. 	A more
accurate 	description was 	offered 	by CSEA 	representative 	Born
who characterized 	the 	result 	as 	an 	agreement 	to disagree.
Because 	the parties 	were 	in disagreement 	about whether 	the
Department's 	underlying 	decision was 	within 	the 	scope 	of
representation, 	they 	could 	not 	reach 	any 	understandings 	on 	the
merits. 	The only 	significant 	result 	of 	the meetings was 	that
CSEA dropped 	its 	demand 	that 	the 	former 	staffing 	patterns 	be
reinstated 	for 	the 	1981-82 	snow 	season 	and 	the Department
agreed 	to conduct 	more meet 	and 	confer 	sessions 	on 	snow 	removal
staffing.
35

On 	these 	facts 	and on 	the 	record 	as 	a whole, 	it 	is
concluded 	that 	the 	Department 	failed 	to meet 	and 	confer 	in 	good
faith 	with 	the 	exclusive 	representative 	and 	thereby 	violated
section 3519(c). 	This 	failure 	to meet 	and confer 	in good 	faith
had 	the 	effect 	of 	denying CSEA 	its 	statutory 	right 	to 	represent
its 	members 	in 	violation of 	section 	3519(b).18 CSEA's 	final
allegation 	is 	that 	the Department's 	actions 	also violated
section 3519(d). 	Section 3519(d) 	makes 	it unlawful for 	the
State 	to 	dominate or 	interfere 	with 	the 	formation or
administration of 	an employee organization. 	No evidence 	was
presented 	in 	support 	of 	this 	contention 	and 	it 	is 	not 	addressed
in CSEA's brief. 	In the 	absence of proof, 	the allegation must
be dismissed.
REMEDY
In 	this case, 	CSEA has 	been sustained 	in 	its contention
that 	the 	Department 	unilaterally changed 	a matter 	within 	the
18Employee 	organization 	rights 	are 	set 	forth 	in 	section
3515.5 which, 	in relevant part, provides:
Employee 	organizations 	shall 	have 	the 	right
to represent 	their members 	in 	their
employment 	relations with 	the 	state, 	except
that once 	an 	employee organization 	is
recognized 	as 	the 	exclusive 	representative
of an appropriate 	unit, 	the 	recognized
employee organization 	is 	the 	only
organization 	that may represent 	that 	unit 	in
employment relations with the state. 	. 	. 	.
36

scope 	of 	representation 	in violation of 	section 	3519(b) 	and
(c). 	In unilateral change cases, 	the ordinary remedy is
restoration 	of 	the 	status 	quo 	ante 	including 	back 	pay plus
interest. 	San Mateo Community College District, 	supra, 	PERB
Decision No. 	94. 	CSEA seeks 	back pay as 	part 	of 	the 	remedy.
It 	is concluded 	that 	while 	restoration of 	the 	prior 	policy
is 	appropriate, 	back pay is 	not. 	Restoring 	the prior 	policy
will put 	the parties 	in 	the 	positions 	they occupied prior 	to
the Department's 	unilateral 	change 	and 	will 	permit 	future
meeting 	and 	conferring 	on 	snow 	removal 	staffing 	to 	be 	conducted
in an 	atmosphere 	free 	from 	the 	coercive 	effect 	of 	a decision
already made. 	With 	respect 	to 	back 	pay 	it 	should 	be 	noted 	that
in 	its 	brief, 	CSEA acknowledges 	that 	its 	claims 	of 	impact may
be 	speculative 	but 	argues 	that 	the 	speculative 	nature 	of 	the
claim "affects the remedy and 	. 	. 	. not 	. 	. 	. 	the duty to
bargain." 	Indeed, 	this 	is 	the case. 	While 	it can be said with
certainty 	that 	but 	for 	the 	changed 	policy more 	regular 	Cal
Trans 	employees 	would 	have 	been given 	temporary promotions 	and
assigned to snow removal 	in 1981-82, 	it 	is 	impossible to know
which 	employees 	would 	have 	been 	affected. 	Choosing 	the
employees 	for 	snow 	removal 	work 	was 	discretionary with Cal
Trans 	management 	and depended 	upon 	the 	Department's 	needs. 	No
individual 	employee ever 	was 	assured 	of 	a 	right 	to 	a 	temporary
promotion for 	snow removal work. 	Thus, 	it 	is not possible 	to
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say which 	individual workers 	were 	affected 	by 	the 	change 	in
policy.
It 	is 	appropriate 	that 	the Department 	be 	required 	to post 	a
copy of 	a notice 	at work 	locations 	throughout Districts 	8 	and
10. 	The 	notice 	should be 	subscribed 	by an authorized 	agent of
the Department 	indicating 	that 	it 	will 	comply 	with 	the 	terms
thereof. 	The 	notice shall not be 	reduced 	in size. 	Posting
will 	provide 	unit members 	with 	notice 	that 	the Department 	has
acted 	in 	an 	unlawful manner 	and 	is 	being 	required 	to cease 	and
desist 	from 	this 	activity. 	It 	effectuates 	the purposes 	of 	the
SEERA 	that 	unit members 	be 	informed 	of 	the 	resolution of 	the
controversy 	and 	announces 	the Department's 	readiness 	to 	comply
with 	the ordered 	remedy. 	See Placerville Union School 	District
(9/18/78), PERB Decision No. 	69. 	In Pandol and Sons v. ALRB
and UFW 	(1979), 	98 Cal.App.3d 580, 	587, 	the California District
Court 	of Appeal 	approved 	a posting 	requirement. 	The U.S.
Supreme 	Court 	approved 	a 	similar 	posting 	requirement 	in NLRB 	v.
Express Publishing Co. 	(1941) 	312 U.S. 	426 	[8 LRRM 415].
PROPOSED 	ORDER
Upon 	the 	foregoing 	facts, 	conclusions 	of 	law and 	the entire
record 	in 	this case, 	it 	is 	found 	that 	the State of California
(Department 	of Transportation) 	has 	violated 	subsections 	3519(b)
and 	(c) 	of 	the State Employer Employee Relations Act. 	It
hereby 	is ORDERED 	that 	the 	State 	of California 	(Department 	of
Transportation) 	shall:
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A. 	CEASE 	AND 	DESIST 	FROM:
Making 	unilateral 	changes 	in matters 	within 	the 	scope
of representation, 	specifically, 	by deciding 	in Districts 	8 and
10 	to eliminate 	opportunities 	for 	regular 	Cal Trans 	employees
to obtain 	temporary promotions 	and work 	in 	snow 	removal,
without 	first meeting 	and 	conferring 	in good 	faith with 	the
exclusive 	representative.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE 	THE POLICIES 	OF THE 	SEERA:
1. 	In accord with 	the practice 	existing prior 	to 	the
1981-82 	winter, 	permit 	regular Cal Trans 	employees 	to volunteer
for 	work 	in 	snow 	removal 	and 	to 	seek 	and 	obtain 	temporary
promotions 	into 	such 	higher 	job classifications 	which 	the
Department 	may 	need 	to 	have 	filled 	and 	for 	which 	the 	persons
who 	volunteer 	are 	qualified.
2. 	Give 	reasonable 	written 	notice 	and 	the
opportunity 	to meet 	and 	confer 	to 	the 	recognized 	exclusive
representative prior 	to adopting any law, 	rule, 	resolution or
regulation 	directly 	relating 	to matters 	within 	the 	scope 	of
representation, 	including 	any decision 	to eliminate 	the
opportunity 	for 	regular 	Cal Trans 	employees 	to 	volunteer 	for
work 	in 	snow 	removal 	and 	to obtain 	temporary promotions 	for
which 	they may 	be 	qualified.
3. 	Within five 	(5) 	working days of 	the date 	upon
which 	this order 	becomes 	final, 	post copies of 	the Appendix
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attached 	hereto 	for 	thirty 	(30) 	working days on all District 	8
and District 	10 	bulletin 	boards 	where 	notices 	to employees 	are
regularly 	posted.
4. 	Within 	twenty 	(20) 	consecutive 	workdays 	from 	the
service 	of 	the 	final decision herein, 	notify 	in writing 	the
Sacramento 	regional 	director 	of 	the 	Public Employment 	Relations
Board 	of 	the 	steps 	the Department 	has 	taken 	to 	comply with 	this
Order. 	Continue 	to report 	in writing 	to 	the 	regional director
periodically 	thereafter, 	as 	directed. 	All reports 	to 	the
regional 	director 	shall 	be 	served 	concurrently on 	the 	charging
party 	herein.
It 	is 	further 	ordered 	that 	the 	present charge 	be DISMISSED
in all other 	respects.
Pursuant 	to California Administrative Code, 	title 	8,
Part III, 	section 	32305, 	this Proposed Decision and Order 	shall
become 	final on October 	25, 	1982, 	unless a party files a 	timely
statement of 	exceptions. 	In accordance with 	the 	rules, 	the
statement 	of 	exceptions 	should 	identify 	by page 	citation or
exhibit 	number 	the 	portions 	of 	the 	record 	relied 	upon 	for 	such
exceptions. 	See California Administrative Code, 	title 	8,
part III, 	section 32300. 	Such statement of exceptions and
supporting 	brief 	must 	be 	either 	actually 	received 	by 	the 	Public
Employment Relations Board 	itself 	at 	the 	headquarters 	office 	in
Sacramento 	before 	the 	close of 	business 	(5:00 p.m.) 	on
October 	25, 	1982, 	or 	sent by telegraph or 	certified
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United 	States mail, 	postmarked 	not later 	than 	the 	last day 	for
filing, 	in order 	to be 	timely filed. 	See California
Administrative Code, 	title 8, 	part III, 	section 32135. 	Any
statement 	of 	exceptions 	and 	supporting 	brief must 	be 	served
concurrently 	with 	its 	filing 	upon 	each 	party 	to 	this
proceeding. 	Proof 	of 	service 	shall 	be 	filed with 	the Board
itself. 	See California Administrative Code, 	title 	8, 	part III,
section 32300 and 	32305, 	as 	amended.
Dated: 	October 	4, 	1982
Ronald E. 	Blubaugh
Hearing 	Officer
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