State of California (Department of Youth Authority) (PERB 1215S)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA STATE 	EMPLOYEES
ASSOCIATION,
Charging 	Party,
v.
STATE 	OF 	CALIFORNIA 	(DEPARTMENT
OF YOUTH AUTHORITY),
Respondent.
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) 	Case No. 	SA-CE-966-S
PERB Decision No. 	1215-S
August 11, 	1997
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Appearances: 	William K. 	Sweeney, 	Area Manager, 	for California
State Employees Association; 	State of 	California 	(Department 	of
Personnel Administration) 	by Warren C. 	Stracener, 	Labor Relations
Counsel, 	for State of California 	(Department of Youth Authority).
Before Caffrey, 	Chairman; 	Johnson and Amador, 	Members.
DECISION AND 	ORDER
AMADOR, 	Member: 	This case comes before the Public
Employment 	Relations 	Board 	(Board) 	on appeal by the 	California
State Employees Association 	(CSEA) 	to a Board agent's partial
dismissal 	(attached) 	of CSEA's unfair practice 	charge.
CSEA alleged 	that 	the 	State 	of 	California 	(Department 	of
California Youth Authority) 	(State) 	violated section 3519(b) 	and
(c) 	of the Ralph C. 	Dills Act 	(Dills Act)1 by: 	(1) 	changing the
1The Dills Act 	is 	codified at 	Government 	Code 	section 	3512
et 	seq. 	Section 3519 provides, 	in pertinent part:
It 	shall be unlawful 	for the 	state 	to do any
of 	the 	following:
(b) 	Deny to employee organizations rights
guaranteed 	to 	them by 	this 	chapter.
e

evening shift 	teachers 	to the day shift; 	(2) 	reassigning some
teachers 	from their 	regular 	classes 	to 	relief 	or 	substitute
assignments; 	(3) 	requiring that 	two classes be 	taught 	in rooms
where one 	class was previously taught; 	and 	(4) 	extending
teacher/student 	contact 	time by thirty minutes, 	thus 	reducing
teacher preparation 	time by 	thirty minutes. 	CSEA alleges 	that
all 	of 	these actions 	were taken without 	giving 	it 	the 	opportunity
to bargain.
(c) 	Refuse or fail, to meet and confer in
good 	faith with a 	recognized 	employee
organization.
The 	Board has 	reviewed the 	entire 	record 	in 	this 	case,
including 	the 	Board 	agent's 	partial 	warning 	and dismissal
letters, 	the original and amended unfair practice charge, 	CSEA's
appeal, 	and the State's 	response. 	The Board finds 	the partial
warning and dismissal 	letters 	to be 	free 	of 	prejudicial 	error and
adopts 	them as 	the 	decision of 	the Board 	itself.
The partial 	dismissal 	of 	the unfair practice 	charge 	in
Case No. 	SA-CE-966-S 	is hereby AFFIRMED.
Chairman 	Caffrey and Member Johnson 	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
May 28, 	1997
Bill Kelly
Senior Labor Relations Representative
California State 	Employees Association
1108 "0" Street
Sacramento, 	CA 95814
Re: 	NOTICE OF PARTIAL DISMISSAL
California State Employees Association v. 	State of
California 	(Department 	of 	Youth Authority)
Unfair Practice Charge No. 	SA-CE-966-S
Dear Mr. Kelly:
The 	above-referenced unfair practice 	charge was 	filed with the
Public Employment Relations Board 	(PERB or Board) 	on April 3,
1997, 	by the California State Employees Association 	(CSEA). 	CSEA
alleges 	that 	the 	California Youth Authority 	(State 	or Respondent)
violated the Ralph C. 	Dills Act 	(Dills Act) 	at sections 3519(b)
and (c) .
I indicated to you, 	in my attached letter dated May 12, 	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
May 19, 	1997, 	the charge would be dismissed.
Your First Amended Charge was received on May 19, 	1997. 	The
amended charge reads 	in its entirety as follows:
During the past 	six months the Department of
Youth Authority has made numerous 	changes 	to
the working conditions of 	teachers employed
at 	the Heman G. 	Stark Youth Training Center
without 	officially noticing or meeting and
conferring with CSEA.
The department 	has 	completely eliminated the
evening teaching shift 	forcing all 	the
teachers working that 	shift 	to change to the
day shift. 	The department has also taken
some 	teachers 	from their regularly scheduled
classes 	and designated them as 	relief 	or
substitute teachers.

Dismissal 	Letter
SA-CE-966-S
May 28, 	1997
Page 2
The department has 	required two classes 	to be
taught 	in rooms that were formally 	[sic] 	used
for the teaching of one class. 	Teachers have
also been required to 	teach classes 	in the
gymnasium and other non-traditional 	settings
such as living units where the teachers must
instruct 	students who 	are each confined in
kennel-like cages.
The department has also increase[d] 	the
amount 	of 	teacher/student 	contact by thirty
minutes per day which reduces 	the teacher
preparation time by thirty minutes.
The department has extended the lunch period
by five minutes which extends the teacher
workday by five minutes.
CSEA is the exclusive representative of State Bargaining Unit 3
Institutional Education, 	which includes teachers employed by
Respondent. 	CSEA and the State were parties to a memorandum of
understanding 	(MOU) 	for Unit 3 which expired June 30, 	1995, 	and
for which successor negotiations have not 	concluded.
The MOU, 	in Article 19, 	Section 19.4.a, provided as follows:
Except in emergencies, 	the State shall
provide fourteen 	(14) 	calendar days advance
notice before an employee's regular shift 	is
changed so that 	the employee has an
opportunity to reschedule his/her
obligations. 	Shift change includes changes
in workday, 	workweek, 	and/or work cycle.
When a department 	intends to change an
employee's regular shift, 	the department
shall 	consider the 	following factors:
• 	The needs of the employee(s)
• 	Volunteers
• 	Seniority
• 	Operational 	needs
• 	The needs of the clients,
patients, inmates, wards,
students, etc.
• 	Skills 	and abilities
• 	Staffing 	requirements
• 	Performance 	and attendance
• 	Credentials
• 	Recruitment 	and Retention	
. . . . .
. . . . .
,(

Dismissal 	Letter
SA-CE-966-S
May 28, 	1997
Page 3
The MOU in Section 21.6.a provided as 	follows 	concerning non-
instructional/teacher preparation 	time:
During a teacher's workday, 	there shall be
scheduled non-instructional 	periods 	for
purposes of teacher preparation and for
performance of other job duties.
Teacher preparation is work time to be used
for the purpose of 	supporting classroom
instruction at a level 	consistent with the
diversity of 	student needs and changing
program demands. 	Management may grant
additional preparation time 	to an individual
teacher when management has made a major
change in the teacher's assignment.
Although it 	is not the 	intent of the State to
unnecessarily infringe upon teachers'
preparation time, 	it 	is recognized by both
parties that 	it may be appropriate for
teachers to be assigned other duties during
this time.
Discussion
As discussed in my May 12, 	1997 letter, 	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, 	in determining whether a party has violated
Dills Act section 3519(c). 	(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.)
Further, 	the charging party's burden includes alleging the 	"who,
what, 	when, 	where and how" of an unfair practice. 	(State of
California 	(Department of Food and Agriculture) 	(1994) 	PERB
Decision No. 	1071-S, 	citing United Teachers-Los Angeles
(Ragsdale) 	(1992) 	PERB Decision No. 	944.) 	Legal conclusions are
not sufficient 	to state a prima facie case. 	(Id.; 	Charter Oak
Unified School District 	(1991) 	PERB Decision No. 	873.)
(

Dismissal 	Letter
SA-CE-966-S
May 28, 	1997
Page 4
Your charge alleges 	five separate 	instances of changes 	in
policy.1 The 	first 	concerns 	the 	elimination of 	the 	evening
teaching shift 	and requirement 	of employees to change 	to the day
shift. 	However, 	under Section 19.4.a of the expired MOU, 	the
State was able 	to change an employee's 	regular work shift
provided notice was given and specified factors were 	considered.
Your charge does not allege 	facts 	showing that 	the State 	failed
to give the required notice or 	failed to consider the 	factors 	set
forth in that policy. 	Therefore, 	this charge allegation fails to
establish a prima 	facie violation and must be dismissed.
The second allegation is that 	some teachers have been reassigned
from their regular classes to relief or substitute assignments.
The charge does not 	allege 	specific 	facts to show any material
change 	in working conditions 	or other factor which would remove
this change 	from the arena of managerial prerogative 	and place it
within the scope of representation. 	(See, 	e.g., 	State of
California 	(Agricultural Labor Relations Board) 	(1984) 	PERB
Decision No. 	431-S.) 	This charge allegation must also be
dismissed.
Third, 	the charge alleges that the State has required two classes
to be taught 	in rooms where only one class was previously taught,
and that other classes have been placed in 	"non-traditional"
settings. 	This allegation also fails to establish any material
change in working conditions which is 	subject to the duty to
bargain, 	and must be dismissed.
The 	fourth allegation is that 	the 	State unlawfully extended
teacher/student 	contact time by thirty minutes 	and thus 	reduced
teacher preparation time by thirty minutes. 	The MOU, 	however,
did not establish a minimum amount of preparation time 	and did
provide at Article 21, 	Section 21.6.a, 	that teachers may be
assigned other duties during their preparation time. 	Therefore,
this allegation does not establish a unilateral 	change 	in
violation of the Dills Act. 	Further, 	even assuming the
provisions of 	Section 21.6.a are not dispositive of this 	issue,
this charge 	fails to allege prima facie evidence of a violation
under the standard set 	forth in Healdsburg Union Elementary
School District 	(1994) 	PERB Decision No. 	1033 	(Healdsburg). 	In
Healdsburg, 	the Board held that:
To demonstrate that 	a change 	in duties during
the workday is negotiable, 	a charging party
1One of the five allegations, 	concerning a change in the length of the
workday, 	is not addressed by this letter.

Dismissal 	Letter
SA-CE-966-S
May 28, 1997
Page 5
must 	show that 	the change has an impact on
the employees' 	workday. 	(Imperial Unified
School District 	(1990) 	PERB Decision No. 	825
(Imperial); Cloverdale Unified School
District 	(1991) 	PERB Decision No. 	911.) 	The
Board has held that 	employers are generally
free 	to alter the 	instructional 	schedule
without negotiations; 	however, 	when changes
in the 	instructional 	day affect 	the length of
the workday or existing duty-free time, 	the
subject is negotiable. 	(Imperial; 	San Mateo
- -	City School District 	(1980) 	PERB Decision No.
129.) 	The Board will not presume an effect
on length of workday or duty free time.
Rather, 	the charging party has the burden of
proving that the employer's 	change 	impacted
negotiable terms and conditions of
employment. 	(Imperial.)
This allegation also fails to state a prima facie violation and
must be dismissed.
Therefore, 	I am dismissing the four charge allegations described
above based on the 	facts 	and reasons 	discussed herein and those
contained in my May 12, 	1997 letter.
Right to Appeal
Pursuant to Public Employment Relations Board regulations, 	you
may obtain a review of this dismissal of the charge by filing
an appeal 	to the Board itself within twenty 	(20) 	calendar days
after service of this dismissal. 	(Cal. 	Code of Regs., 	tit. 	8,
sec. 	32635(a).) 	To be timely filed, 	the original and five copies
of such appeal must be actually received by the Board itself
before the close of business 	(5 p.m.) 	or sent by telegraph,
certified or Express United States mail postmarked no 	later
than the last date set for filing. 	(Cal. 	Code of Regs., 	tit. 	8,
sec. 	32135.) 	Code of Civil Procedure section 1013 	shall apply.
The Board's address is:
Public Employment Relations Board
1031 	18th Street
Sacramento, 	CA 95814
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).)

Dismissal 	Letter
SA-CE-966-S
May 28, 1997
Page 6
Service
All documents 	authorized to be 	filed herein must also be 	"served"
upon all parties to the proceeding, 	and a "proof of service"
must accompany each copy of a document 	served upon a party or
filed with the Board itself. 	(See Cal. 	Code of Regs., 	tit. 	8,
sec. 	32140 	for the required contents and a sample form.) 	The
document will 	be 	considered properly 	"served" 	when personally
delivered or deposited in the 	first-class mail, 	postage paid and
properly addressed.
Extension of Time
A request 	for an extension of time, 	in which to file a document
with the Board itself, 	must be 	in writing and filed with the
Board at the previously noted address. 	A request 	for an
extension must be filed at least three 	(3) 	calendar days before
the expiration of the time required for filing the document.
The request must indicate good cause for and, 	if known, 	the
position of each other party regarding the extension, 	and shall
be accompanied by proof of service of 	the request upon each
party. 	(Cal. Code of Regs., tit. 	8, sec. 32132.)
Final Date
If no appeal 	is filed within the specified time limits, 	the
dismissal will become final when the time limits have expired.
Sincerely,
ROBERT THOMPSON
Deputy General 	Counsel
By
Les Chisholm
Regional Director
Attachment
cc: 	Nalda L. 	Keller

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
May 12, 1997
Bill Kelly
Senior Labor Relations Representative
California State 	Employees Association
1108 "0" Street
Sacramento, 	CA 95814
Re: 	WARNING LETTER
California State Employees Association v. 	State of
California 	(Department 	of 	Youth Authority)
Unfair Practice Charge No. 	SA-CE-966-S
Dear Mr. Kelly:
The 	above-referenced unfair practice 	charge was 	filed with the
Public Employment Relations Board 	(PERB or Board) 	on April 3,
1997, 	by the California State Employees Association 	(CSEA). 	CSEA
alleges that 	the 	California Youth Authority 	(State 	or Respondent)
violated the Ralph C. 	Dills Act 	(Dills Act) 	at sections 3519(b)
and (c).
The charge as 	filed reads 	in its entirety as follows:
On or about April 1, 	1997, 	the 	[Respondent]
made 	changes in the working conditions of
Unit 3 members at Heman G. 	Stark - Youth
Training School. 	The changes include, 	but
are not 	limited to, 	changing the starting and
stopping times of work shifts, 	modifying work
schedules within work shifts, 	changing the
ratio of preparation time to student contact
time, 	and forcing Unit 3 members to share
classrooms and restroom facilities. 	All 	of
the 	above 	occurred without 	officially
noticing 	[CSEA] 	or bargaining with 	[CSEA]
over these issues.
Discussion
PERB Regulation 32615(a)(5) 	requires, 	inter alia, 	that an unfair
practice charge 	include a 	"clear and concise 	statement of 	the
facts and conduct 	alleged to constitute an unfair practice."
Thus, 	the charging party's burden includes alleging the 	"who,
what, 	when, 	where and how" of an unfair practice. 	(State of
California 	(Department of Food and Agriculture) 	(1994) 	PERB
Decision No. 	1071-S, 	citing United Teachers-Los Angeles
(Ragsdale) 	(1992) 	PERB Decision No. 	944.) 	Legal conclusions are
•

not sufficient to state a prima facie case. 	(Id.; 	Charter Oak
Unified School District 	(1991) 	PERB Decision No. 	873.)
Warning Letter
SA-CE-966-S
May 12, 1997
Page 2
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.)
The 	instant 	charge alleges 	that Respondent unlawfully implemented
a change in policy, 	but the charge is wholly lacking specific
information as 	to what 	the specific provisions of the prior
policy were and how the 	"new" 	policy differs 	from past policy or
practice.
On April 29, 	1997, 	we discussed the lack of specificity of this
charge by telephone, 	and you indicated that an amended charge
correcting the deficiency would be 	filed that 	same week. 	To
date, 	an amended charge has not been filed and my subsequent
attempts to contact you have been unsuccessful.
For these reasons the charge, 	as presently written, 	does not
state a prima facie case. 	If there are any factual 	inaccuracies
in this letter or additional 	facts which would correct 	the
deficiencies explained above, 	please amend the charge. 	The
amended charge 	should be prepared on a 	standard PERB unfair
practice charge form, 	clearly labeled First Amended Charge,
contain all 	the facts and allegations you wish to make, 	and
be signed under penalty of perjury by the charging party. 	The
amended charge must be 	served on 	the 	respondent 	and 	the 	original
proof of service must be filed with PERB. 	If I do not receive an
amended charge or withdrawal from you before May 19. 	1997, 	I
shall dismiss your charge. 	If you have any questions, 	please
call me at 	(916) 	322-3198, 	extension 359.
Sincerely,
Les Chisholm
Regional Director