State of California (Department of Corrections) * * * OVERRULED by Culver City Employees Association v. City of Culver City (2020) PERB Decision No. 2731-M (PERB 1201S)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA STATE 	EMPLOYEES
ASSOCIATION,
Charging 	Party,
v.
STATE OF CALIFORNIA 	(DEPARTMENT OF
CORRECTIONS),
Respondent.
)
)
)
) 	Case No. 	SA-CE-919-S
PERB Decision No. 	1201-S
June 2, 	1997
)
))
)
)
)
)
Appearances: 	California State 	Employees Association by 	Frank H.
Pulido, 	Labor Relations Representative; 	State of California
(Department of Personnel Administration) 	by Carol A. 	McConnell,
Labor Relations 	Counsel, 	for State of 	California 	(Department 	of
Corrections).
Before Caffrey, 	Chairman; 	Johnson and Dyer, 	Members.
DECISION AND 	ORDER
JOHNSON, 	Member: 	This 	case is before the Public Employment
Relations 	Board 	(Board) 	on appeal 	by the 	California State
Employees Association 	(Association) 	to a Board agent's 	dismissal
(attached) 	of 	the unfair practice 	charge and refusal 	to 	issue a
complaint. 	The Association alleged that 	the State 	of 	California
(Department of Corrections) 	(State) 	violated section 3519(a),
(b), 	(c) 	and 	(d) 	of the Ralph C. 	Dills Act 	(Dills Act)1 by 	(1)
1The Dills Act 	is 	codified at 	Government 	Code 	section 	3512
et seq. 	Section 3519 	states, 	in pertinent part:
It 	shall be unlawful 	for the 	state to do any
of 	the 	following:
(a) 	Impose or threaten to impose reprisals
on employees, 	to discriminate or threaten to
discriminate against 	employees, 	or otherwise
to interfere with, 	restrain, 	or coerce
~!
~
* * * OVERRULED by Culver City Employees Association v. City of Culver City
(2020) PERB Decision No. 2731-M * * *

employees because 	of 	their exercise 	of 	rights
guaranteed by this 	chapter. 	For purposes 	of
this subdivision, 	"employee" 	includes an
applicant 	for employment 	or 	reemployment.
(b) 	Deny to employee 	organizations 	rights
guaranteed 	to 	them by 	this 	chapter.
(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.
unilaterally 	changing 	its 	practice 	of 	allowing 	employees 	to 	trade
shifts and hours; 	and 	(2) 	by discriminating against an employee
for 	engaging 	in protected 	activity by denying 	him a merit 	salary
adjustment.
The Board has 	reviewed the 	entire 	record 	in this 	case,
including 	the Board agent's warning and dismissal 	letters, 	the
unfair practice charge, 	the Association's appeal, 	and the State's
response. 	The Board 	finds 	the warning and dismissal 	letters 	to
be 	free of prejudicial error and, 	therefore, 	adopts 	them as 	the
decision of 	the Board itself.
The unfair practice 	charge 	in Case No. 	SA-CE-919-S 	is hereby
DISMISSED WITHOUT LEAVE 	TO AMEND.
Chairman 	Caffrey and Member Dyer 	joined 	in 	this 	Decision.
22

STATE OF CALIFORNIA 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
1031 18th Street, Room 102
Sacramento, CA 95814-4174
(916) 322-3198
February 26, 	1997
Frank H. 	Pulido
CSEA Labor Relations Representative
1943 N. 	Gateway Blvd., 	Suite 101
Fresno, 	CA 	93 	727
Re: 	California State Employees Association v. 	State of
California 	(Department 	of 	Corrections)
Unfair Practice Charge No. 	SA-CE-919-S
DISMISSAL AND REFUSAL TO 	ISSUE COMPLAINT
Dear Mr. Pulido:
In the above-referenced unfair practice charge, 	filed
December 4, 	1996, 	the California State Employees Association
alleges 	that 	the Department of 	Corrections violated the
Ralph C. 	Dills Act, 	Government Code section 3519, 	by 	(1)
unilaterally changing its practice of allowing employees 	to
trade shifts and hours, 	and 	(2) 	discriminating against
Ignacio Salazar for engaging 	in protected activity by
denying him a merit 	salary adjustment.
I 	indicated to you, 	in my attached letter dated
February 11, 	1997, 	that the above-referenced charge did not
state a prima facie case. 	You were advised that, 	if there
were any factual 	inaccuracies or additional 	facts which
would correct the deficiencies explained in that letter, 	you
should amend the charge. 	You were further advised that,
unless you amended the charge to state a prima facie case or
withdrew it prior to February 20, 	1997, 	the charge would be
dismissed. 	At your request, 	this deadline was extended to
February 21, 1997.
I have not 	received either an amended charge or a
request for withdrawal. 	Therefore, 	I am dismissing the
charge based on the 	facts 	and reasons contained in my
February 11, 	1997 letter.
Right to Appeal
Pursuant 	to Public Employment Relations Board
regulations, 	you may obtain a review of this dismissal of

SA-CE-919-S
Dismissal 	Letter
February 26, 	1997
Page 2
the charge by filing an appeal 	to the Board itself within
twenty 	(20) 	calendar days after service of this dismissal.
(Cal. Code of Regs., 	tit. 	8, 	sec. 	32635(a).) 	To be timely
filed, 	the original and five copies of such appeal must be
actually received by the Board itself before the 	close of
business 	(5 p.m.) 	or sent by telegraph, 	certified or Express
United States mail postmarked no 	later
than the last date set for filing. 	(Cal. 	Code of Regs.,
tit. 	8, 	sec. 	32135.) 	Code of Civil Procedure section 1013
shall apply. 	The Board's address is:
Public Employment Relations Board
1031 18th Street
Sacramento, 	CA 95814
If you file a timely appeal of the refusal 	to issue a
complaint, 	any other party may file with the Board an
original and five copies of a statement 	in opposition within
twenty 	(20) 	calendar days following the date of service of
the appeal. 	(Cal. Code of Regs., 	tit. 	8, 	sec. 	32635(b).)
Service
All documents authorized to be 	filed herein must 	also
be 	"served" upon all parties to the proceeding, 	and a 	"proof
of service"
must accompany each copy of 	a document 	served upon a party
or filed with the Board itself. 	(See Cal. 	Code of Regs.,
tit. 	8, 	sec. 	32140 for the required contents and a sample
form.) 	The document will be considered properly 	"served"
when personally delivered or deposited in the 	first-class
mail, 	postage paid and properly addressed.
Extension of Time
A request for an extension of time, 	in which to file a
document with the Board itself, 	must be in writing and filed
with the Board at 	the previously noted address. 	A request
for an extension must be filed at least three 	(3) 	calendar
days before the expiration of the time required for filing
the document.
The request must indicate good cause for and, 	if known, 	the
position of each other party regarding the extension, 	and
shall be accompanied by proof of 	service of 	the request upon
each party. 	(Cal. Code of Regs., 	tit. 	8, 	sec. 	32132.)
(

SA-CE-919-S
Dismissal Letter
February 26, 	1997
Page 3
Final Date
If no appeal 	is filed within the specified time limits,
the dismissal will become final when the time limits have
expired.
Sincerely,
ROBERT THOMPSON
Deputy General 	Counsel
By ROBIN E. Wright
Regional Attorney
Attachment
cc: 	Peter C. 	Olson

STATE OF CALIFORNIA 	( 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
1031 18th Street, Room 102
Sacramento, CA 95814-4174
(916)322-3198
PERD
February 11, 	1997
Frank H. 	Pulido
CSEA Labor 	Relations 	Representative
1943 N. 	Gateway Blvd., 	Suite 101
Fresno, 	CA 	93727
Re: 	California 	State Employees Association v. 	State 	of
California 	(Department 	of 	Corrections)
Unfair Practice 	Charge No. 	SA-CE-919-S
WARNING 	LETTER
---------=--	-_ 	-
Dear Mr. 	Pulido:
The 	above-referenced unfair practice 	charge 	was 	filed with
the 	Public Employment Relations 	Board on December 4, 	1996. 	The
charge alleges 	that 	the Department 	of Corrections 	(CDC) 	violated
the Ralph C. 	Dills Act, 	Government Code section 3519, 	by 	(1)
unilaterally 	changing 	its 	practice 	of 	allowing 	employees 	to 	trade
shifts and hours, 	and 	(2) 	discriminating against 	Ignacio Salazar
for 	engaging 	in protected 	activity by denying him 	a 	merit 	salary
adjustment 	(MSA).
Investigation 	of 	the 	charge 	revealed 	the 	following 	relevant
information. 	CSEA and the 	State 	are parties 	to a memorandum of
understanding which expired June 	30, 	1995. 	Article 	20 	of 	the MOU
addresses hours of work and overtime. 	Article 20.3, 	Change 	in
Shift Assignment, 	provides, 	in pertinent part:
An 	employee 	may 	submit 	a 	written 	request 	to
alter his/her 	shift 	assignment.
Article 20.10, 	Exchange of Days Off/Shift Assignment, 	provides,
in pertinent part:
(a) 	Permanent 	Unit 	15 	employees 	at 	. . .
Department of Corrections, 	. 	. 	. may be
permitted 	to 	exchange 	hours 	of 	work with
other 	employees 	in the 	same 	classification 	or
level 	(determined by the 	Supervisor),
performing the 	same 	type 	of 	duties 	in the
same work area, 	provided:
(1) 	The 	employees make a written request 	to
their supervisor(s), 	at least twenty-four
(24) 	hours prior to the exchange;

SA-CE-919-S
Warning 	Letter
February 11, 	1997
Page 	2
(2) 	The 	supervisor(s) 	approves 	the exchange; 	and
(3) 	The 	employees 	exchanging hours 	of 	work
shall 	not 	be 	entitled 	to 	any 	additional
compensation 	(e.g., 	overtime 	or 	overtime
meals, 	holiday credit-pay, 	shift
differential) 	which 	they would 	not 	have
otherwise 	received.
Employees 	in 	the 	Supervising 	Cook 	I 	position 	prepare 	meals
for 	inmates 	in 	the 	various 	kitchens 	located at 	the 	Central
California Women's 	Facility 	(CCWF). 	Work 	shifts 	are 	assigned on
a 	monthly basis. 	For 	example, 	an 	employee 	may be 	assigned 	to
work 	in Kitchen 	1, 	Monday 	- 	Friday, 	6:00 	a.m. 	to 	2:00 	p.m. 	The
following 	month, 	the 	same 	employee 	may be 	assigned 	to 	another
kitchen, 	working 	an 	afternoon 	shift.
For 	several 	years, 	employees 	in 	this 	classification have
been 	able 	to 	trade 	monthly 	shifts 	or 	a 	single 	day's 	shift 	by
informally 	notifying 	their 	supervisor 	that 	they 	intend 	to 	swap
shifts 	with 	another 	employee.
In 	July 	1996, 	a 	meeting was 	scheduled between 	CSEA 	and 	CDC
to 	discuss 	concerns 	about 	the 	preferential 	assignment 	of 	shifts.
Prior 	to 	the meeting, 	on or about 	July 11, 	Joe Barrett, 	CCWF Food
Manager, 	telephoned Salazar and D. 	Johnson, 	Supervising 	Cook 	I's,
and 	informed 	them 	that 	he 	had 	their 	MSA authorization 	forms. 	He
asked 	each 	of 	them 	"Do 	you 	think 	you 	deserve 	an MSA? " 	On 	July
11, 	Barrett 	denied 	Salazar's 	MSA with 	a promise 	to 	review 	the
matter 	in 45 	days.
At 	the 	July 	15 	meeting, 	employees 	in 	the 	supervising 	cook
positions 	raised 	concerns 	that 	some 	employees 	were 	not 	being
rotated 	among 	the 	various 	kitchens 	and 	that 	shifts 	were 	not 	being
fairly 	assigned. 	Salazar 	in particular 	was 	critical 	of 	Barrett's
management 	style. 	CSEA 	also 	questioned whether 	Barrett's
comments 	to 	Salazar 	and 	Johnson 	concerning 	their 	MSAs 	were
appropriate.
At 	the 	meeting, 	the 	Department 	realized 	that 	Barrett's
method of 	allowing 	employees 	to 	trade 	work 	shifts 	was
inconsistent 	with 	the parties' 	agreement. 	Barrett 	was 	informed
by 	Department 	representatives 	that 	single 	day 	trades 	were 	covered
under Article 	20.10 	and 	full 	shift 	change 	requests 	should 	be
handled under Article 	20.3.
In the 	days 	following 	the meeting, 	as 	employees 	were
notifying 	their 	supervisors 	of 	shift 	trades 	they 	had 	arranged
(

SA-CE-919-S
Warning 	Letter
February 11, 	1997
Page 3
with 	co-workers, 	Barrett 	informed them 	that 	monthly 	shift 	trades
were 	no 	longer permitted.
On September 	10, 	Salazar was notified by Barrett 	that 	his
MSA had 	again 	been 	denied.
CSEA alleges 	that 	CDC unilaterally changed 	its 	practice 	of
allowing employees 	to 	trade 	shifts.
In determining whether 	a party has 	violated Dills 	Act
section 3519(c), 	PERB utilizes either the 	"per se" 	or 	"totality
of 	the 	conduct" 	test, 	depending on the 	specific 	conduct 	involved
and 	the 	effect 	of 	such conduct 	on 	the 	negotiating process.
(Stockton Unified School District 	(1980) 	PERB Decision No. 	143.)
Unilateral 	changes 	are 	considered 	"per 	se" 	violations 	if 	certain
criteria are met. 	Those criteria are: 	(1) 	the employer
implemented 	a 	change 	in policy 	concerning 	a 	matter within 	the
scope of 	representation, 	and 	(2) 	the change was 	implemented
before 	the 	employer notified the 	exclusive 	representative 	and
gave 	it 	an opportunity to 	request 	negotiations. 	(Walnut 	Valley
Unified School District 	(1981) 	PERB Decision No. 	160; 	Grant 	Joint
Unified High School District 	(1982) 	PERB Decision No. 	196; 	State
of 	California 	(Department 	of Transportation) 	(1983) 	PERB Decision
No. 	361-S.) 	However, 	an employer does not make an unlawful
change 	if 	its 	actions 	conform to the 	terms of the parties'
agreement. 	(Marysville Joint Union School 	District 	(1983) 	PERB
Decision No. 	314.)
In Marysville, 	the 	Board 	found that 	the plain meaning of
the 	agreement, 	which provided lunch breaks of 	"no 	less 	than
30 	minutes," 	was 	not 	superseded by a 	consistent past practice 	of
55 minute 	lunch breaks. 	The Board stated, 	"The mere 	fact 	that 	an
employer has 	not 	chosen to enforce 	its 	contractual 	rights 	in the
past 	does not mean that, 	ipso facto, 	it 	is 	forever precluded from
doing so." 	(At p. 	10, 	citation omitted).
In the present 	case, 	as 	in Marysville, 	the MOU clearly sets
out 	the procedures 	for employee 	trading of 	monthly and daily
shifts. 	The plain meaning of the agreement, 	that 	shifts 	cannot
be 	traded without 	the 	supervisor's 	approval, 	is not 	superseded by
the 	past 	practice 	of 	allowing employees 	to 	informally arrange
their own shift 	changes. 	Therefore, 	CSEA has 	failed to
demonstrate 	an unlawful 	unilateral 	change 	of policy.
CSEA also 	alleges 	that 	CDC 	discriminated against 	Salazar
for expressing concerns 	about 	Barrett's management 	style 	at 	the
July 15 meeting.
(

SA-CE-919-S
Warning 	Letter
February 11, 	1997
Page 4
To demonstrate 	a violation of Dills Act 	section 3519(a), 	the
charging party must 	show that: 	(1) 	the 	employee 	exercised rights
under the Dills Act; 	(2) 	the employer had knowledge of 	the
exercise of 	those rights; 	and 	(3) 	the employer imposed or
threatened to 	impose 	reprisals, 	discriminated or 	threatened 	to
discriminate, 	or otherwise 	interfered with, 	restrained or 	coerced
the 	employees because 	of 	the 	exercise 	of 	those 	rights. 	(Novato
Unified School District 	(1982) 	PERB Decision No. 	210; 	Carlsbad
Unified School District 	(1979) 	PERB Decision No. 	89; 	Department
of Developmental 	Services 	(1982) 	PERB Decision No. 	228-S;
California State University 	(Sacramento) 	(1982) 	PERB Decision
No. 	211-H.)
Although the 	timing of 	the 	employer's 	adverse 	action 	in
close 	temporal 	proximity to 	the 	employee's 	protected 	conduct 	is
an important 	factor, 	it does not, 	without more, 	demonstrate the
necessary connection or 	"nexus" 	between 	the 	adverse 	action 	and
the 	protected 	conduct. 	(Moreland Elementary School 	District
(1982) 	PERB Decision No. 	227.) 	Facts establishing one or more
of 	the 	following additional 	factors must 	also be present:
(1) 	the employer's disparate treatment of the employee; 	(2) 	the
employer's 	departure 	from 	established procedures 	and 	standards
when dealing with the employee; 	(3) 	the employer's 	inconsistent
or contradictory justifications 	for its actions; 	(4) 	the
employer's 	cursory 	investigation of 	the 	employee's 	misconduct;
(5) 	the employer's 	failure 	to offer the employee 	justification at
the 	time 	it 	took action or the offering of 	exaggerated, 	vague, 	or
ambiguous 	reasons; 	or 	(6) 	any other facts which might 	demonstrate
the 	employer's 	unlawful 	motive. 	(Novato Unified School 	District,
supra; 	North Sacramento School 	District 	(1982) 	PERB Decision
No. 	264.)
CSEA 	established 	that 	Salazar 	engaged 	in protected 	activity
when 	he 	expressed concerns 	about 	shift 	assignments 	at 	the 	July 	15
meeting. 	Salazar was 	adversely affected when Barrett 	again
denied his MSA on September 	10. 	However, 	CSEA has 	failed to
demonstrate 	a 	connection between 	the 	adverse 	action 	and 	the
protected conduct. 	Therefore, 	as presently written, 	this 	charge
does 	not 	state 	a prima 	facie violation of 	Dills Act 	section
3519(a).
For these reasons the charge, 	as presently written, 	does not
state 	a prima 	facie 	case. 	If 	there are 	any factual 	inaccuracies
in 	this 	letter or additional 	facts 	which would correct 	the
deficiencies 	explained above, 	please 	amend the 	charge. 	The
amended 	charge 	should be 	prepared on 	a 	standard 	PERB 	unfair
practice 	charge 	form, 	clearly 	labeled 	First Amended 	Charge.
contain all 	the 	facts 	and allegations you wish to make, 	and
(

SA-CE-919-S
Warning Letter
February 11, 	1997
Page 5
be 	signed under penalty of perjury by the 	charging party. 	The
amended charge must be served on the respondent and the original
proof of service must be filed with PERB. 	If 	I do not receive an
amended charge or withdrawal from you before February 20. 	1997. 	I
shall dismiss your charge. 	If you have any questions, 	please
call me at 	(916) 	322-3198.
Sincerely,
Robin E. Wright
Regional Attorney