State of California, Department of Personnel Administration (PERB 0739S)

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STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT RELATIONS 	BOARD
ASSOCIATION 	OF 	CALIFORNIA
STATE ATTORNEYS AND ADMINISTRATIVE
LAW 	JUDGES 	(ACSA),
Charging 	Party,
v.
STATE OF CALIFORNIA, 	DEPARTMENT
OF 	PERSONNEL ADMINISTRATION,
Respondent.
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) 	Case No. 	S-CE-410-S
PERB Decision No. 	739-S
June 	8, 1989
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Appearances: 	Ernest F. 	Schulzke, 	Attorney, 	for the Association
of 	California 	State Attorneys 	and Administrative 	Law Judges
(ACSA); 	Christopher W. Waddell, Chief Counsel, 	for the State of
California, 	Department of Personnel Administration.
Before Porter, 	Craib and Shank, 	Members.
DECISION
SHANK, 	Member: 	This 	case is before the Public 	Employment
Relations 	Board 	(PERB or Board) 	on appeal by the Association of
California 	State Attorneys 	and Administrative 	Law Judges 	(ACSA or
Association) 	of 	the dismissal by a PERB administrative 	law judge
(ALJ) 	of 	a 	complaint which alleged that the State of California,
Department of Personnel Administration 	(DPA) 	failed to 	"meet and
confer in good faith" 	in violation of 	section 	3519(c) 	and
derivatively, 	(a) 	and (b) 	of the Ralph C. 	Dills Act 	(Act).1
The 	Ralph C. 	Dills Act 	is 	codified at Government Code
section 3512 	et 	seq. 	Section 3519 	states, 	in relevant part:
It 	shall be unlawful 	for the 	state to:
(a) 	Impose or threaten to impose reprisals 	on
employees, 	to discriminate or threaten to discriminate
against employees, 	or otherwise to 	interfere with,

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Having reviewed the 	entire 	record, 	we reverse 	the dismissal 	of
the 	complaint 	for the reasons 	set 	forth below.
restrain, 	or coerce employees 	because of their exercise
of 	rights 	guaranteed by this 	chapter.
(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.
FACTUAL AND 	PROCEDURAL 	SUMMARY
On October 3, 	1988, 	the Association, 	exclusive
representative 	for 	state 	attorneys 	and administrative 	law 	judges,
filed the 	charge at 	issue. 	ACSA alleged that 	DPA 	failed 	to meet
and 	confer 	in good 	faith by 	refusing 	to make 	a 	salary proposal 	or
respond meaningfully to 	its proposal 	until 	five months 	after ACSA
made 	its 	opening proposal, 	three months 	after ACSA made a
detailed 	salary proposal, 	and nearly two months 	after the
adoption of 	the 	state budget by the Legislature 	and
Governor. 	The gravamen of ACSA's 	charge 	is 	that DPA is
obligated, 	pursuant to the Act, 	to meet and confer with ACSA and
to 	consider 	its 	salary proposal prior to 	the adoption of 	the
state budget by 	the 	Legislature 	and the Governor.
The 	PERB General 	Counsel 	issued 	a 	complaint 	against 	DPA 	and
DPA filed 	its 	answer along with a motion to dismiss 	the
complaint.
In its 	motion to dismiss, 	DPA contended that ACSA failed to
state 	a prima 	facie 	case and argued that 	a delay 	in negotiations
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over salaries is not, 	in and. of itself, 	a failure to negotiate in
good 	faith. 	In response, 	the Association argued that the 	charge
and 	complaint 	stated a prima 	facie 	case.
The ALJ 	dismissed 	the 	complaint 	after 	concluding 	that 	the
single 	allegation that 	DPA delayed 	in making an 	initial 	salary
offer was 	insufficient 	to 	establish a prima 	facie 	failure 	to meet
and 	confer 	in good 	faith violation.
DISCUSSION
The 	only 	issue 	for Board 	resolution 	is 	whether 	sufficient
facts 	were 	alleged 	to 	state a prima 	facie 	case 	of 	failure 	to
negotiate 	in good 	faith.2 To 	state a prima 	facie 	case, 	the
Association must 	allege 	facts 	indicating 	that 	the 	conduct 	by 	DPA
amounted to 	a 	refusal 	to negotiate ACSA's 	salary proposal.
PERB utilizes 	both 	the 	"per 	se" 	and 	"totality of 	the
conduct" 	tests 	to ascertain whether a party's 	negotiating 	conduct
constitutes 	an unfair 	labor practice. 	(Stockton Unified 	School
District 	(1980) 	PERB Decision No. 	143.) 	The distinction between
the 	two 	tests was 	delineated 	in Pajaro Valley Unified 	School
District 	(1978) 	PERB Decision No. 	51. 	The Board noted:
The 	National 	Labor 	Relations 	Board 	(hereafter
NLRB) 	has 	long held that 	[a duty to bargain
in good faith] 	requires 	that the employer
negotiate with a bona 	fide 	intent 	to reach an
agreement. 	In re Atlas Mills, 	Inc. 	(1937)
2In reviewing the dismissal 	of 	a 	charge 	for 	failure 	to 	state
a prima 	facie 	case, 	the essential 	facts 	alleged 	in the 	charge are
presumed 	to be true. 	(San Juan Unified School 	District 	(1977)
EERB Decision No. 	12.) 	(Prior to January 	1, 	1978, 	PERB was known
as 	the Educational 	Employment Relations 	Board 	(EERB).) 	(State of
California 	(Department of Transportation) 	(1983) 	PERB Decision
No. 	333-S.)
W

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3 NLRB 10 	[1 LRRM 60]. 	The standard
generally 	applied 	to 	determine whether 	good
faith bargaining has 	occurred has 	been called
the 	"totality of conduct" 	test. 	See NLRB v.
Stevenson Brick and Block Co. 	(4th cir. 	1968)
393 	F.2d 	234 	[68 	LRRM 2086] 	modifying 	(1966)
160 NLRB 	198 	[62 LRRM 1605]. 	This test looks
to the 	entire 	course of 	negotiations 	to
determine whether 	the 	employer has 	negotiated
with the 	requisite 	subjective 	intention of
reaching 	an agreement.
There are certain acts, 	however, 	which have
such a potential 	to 	frustrate 	negotiations
and 	to 	undermine 	the 	exclusivity of 	the
bargaining 	agent 	that 	they 	are 	held 	unlawful
without 	any determination of 	subjective bad
faith on the part of 	the employer. 	In
NLRB v. 	Katz 	(1962) 	369 U.S. 	736 	[50 LRRM
2177] 	the NLRB 	found that 	a unilateral 	grant
of benefits, 	short of 	impasse and without
notice to the union, 	constituted per 	se an
illegal refusal to bargain. 	. 	. 	.
The Association alleges 	that, 	by refusing to present a
salary proposal 	or to 	respond meaningfully to ACSA's 	salary
proposal until 	five months after ACSA's 	"sunshine" 	proposal, 	more
than three 	months 	after ACSA's 	first detailed 	salary proposal,
and 	nearly 	two months 	after 	adoption of 	the budget 	by both 	the
Legislature 	and the Governor, 	DPA 	failed to meet and 	confer 	in
good 	faith. 	Here, 	the Association alleges 	that DPA presented 	its
first 	salary proposal 	nearly 	two 	months 	after 	the 	adoption of 	the
budget by both 	the 	Legislature 	and 	the Governor.
In dismissing the complaint 	for 	failure to 	state 	a prima
facie violation of 	the Act, 	the ALJ 	relied primarily on State 	of
California 	(Department of Personnel Administration) 	(1986) 	PERB
Decision No. 	569-S. 	In State of California, 	supra. 	the Board, 	in
a narrowly drawn decision, 	held that, 	although the 	state was
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under an obligation pursuant 	to 	section 	3517 	of 	the Act 	"to
endeavor to 	reach 	agreement on matters within the 	scope of
representation prior to 	the adoption by the 	state of 	its 	final
budget 	for the 	ensuing year," 	a 	failure to 	negotiate 	salaries
prior to 	the date 	the Legislature must pass 	the budget was 	not
always a per se refusal to bargain. 	(Id. 	at p. 	7.) 	The Board
noted that 	"the 	statutorily 	imposed obligation 	'to 	endeavor' 	can
by 	no 	means 	be 	interpreted 	to 	create 	an absolute 	standard
pursuant to which a 	failure to present proposals 	by June 	15 	must
be 	judged a per se violation." 	(Id. 	at p. 	8.)
We 	find that 	the allegations 	are 	sufficient 	to 	state 	a prima
facie case, 	and that the 	issue of whether or not DPA failed to
meet 	and 	confer 	in good 	faith 	is 	a 	factual 	question to be
determined 	after a 	hearing on the 	merits.
ORDER
Based on the record, 	it 	is 	hereby ORDERED that the ALJ's
dismissal of the 	complaint 	in Case No. 	S-CE-410-S 	is 	REVERSED and
the 	complaint herein 	is 	REMANDED to 	the Chief Administrative 	Law
Judge 	for 	further proceedings 	in accordance with this 	Decision.
Members 	Porter and Craib 	joined 	in this 	Decision.
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