State of California (Department of Motor Vehicles) (PERB 1251S)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA UNION 	OF 	SAFETY
EMPLOYEES,
Charging 	Party,
v.
STATE 	OF 	CALIFORNIA 	(DEPARTMENT
OF MOTOR VEHICLES),
Respondent.
Case No. 	SA-CE-897-S
PERB Decision No. 	1251-S
February 25, 	1998
Appearances: 	Sam A. 	McCall, 	Jr., 	Chief Legal Counsel, 	for
California Union of 	Safety Employees; 	State of 	California
(Department 	of Personnel Administration) 	by Linda M. 	Nelson,
Labor Relations Counsel, 	for State of California 	(Department of
Motor Vehicles).
Before Johnson, 	Amador and Jackson, 	Members.
DECISION
JOHNSON: 	This 	case 	is before 	the Public Employment
Relations 	Board 	(PERB or Board) 	on exceptions 	filed by the State
of California 	(Department 	of Motor Vehicles) 	(State or DMV) 	to an
administrative 	law judge's 	(ALJ) 	proposed decision. 	The ALJ
found that the State violated section 3519(a), 	(b) 	and 	(c) 	of the
Ralph C. 	Dills Act 	(Dills Act)1 by unilaterally eliminating a 	$75
per month 	stipend 	for 	certain 	Licensing 	Registration 	Examiners
(LREs) 	without 	affording 	the California Union of 	Safety Employees
(CAUSE) 	the 	opportunity to meet and confer.
After reviewing 	the 	entire 	record, 	the Board hereby
1The Dills Act 	is 	codified at 	Government 	Code 	section 	3512
et 	seq. 	Unless 	otherwise 	indicated, 	all 	statutory references
herein are 	to 	the Government 	Code.
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dismisses 	the unfair practice 	charge and 	complaint.
BACKGROUND
Factual 	Background
LREs 	are a 	classification of 	employees 	at DMV who 	test
applicants 	for motor vehicle drivers 	licenses. 	Certain LREs who
have 	been 	trained 	to 	administer 	commercial 	driver 	licensing 	(CDL)
tests are known as 	"CDL LREs". 	Pursuant 	to Article 	19.19 	of 	the
parties' 	expired memorandum of understanding 	(MOU),2 CDL LREs
receive 	a 	$75 	per month pay differential 	provided 	that 	they meet
certain conditions. 	The MOU reads, 	in part:
(a) 	Licensing Registration Examiners who are
trained 	and 	certified by 	the 	department 	to
test 	applicants 	for a 	Commercial 	Drivers
License 	(CDL) 	shall be eligible 	for a
differential 	of 	$75.0
- - - - -0 	per pay period,
provided the 	following 	criteria 	is met:
(1) 	Be designated by management 	as 	a CDL
examiner 	for a 	specific work location.
(2) 	Spend an average of 25% of 	time while on
duty 	conducting 	CDL drive 	tests.
(Emphasis 	added.)
A few years ago, 	a 	certain type of 	CDL test known as
"special 	drives" 	was assigned to CDL LREs.3 In 1995, 	DMV
expressed its 	intention to train all 	LREs, 	not 	just CDL LREs, 	to
perform special drives. 	After training, 	there was a greater
number of 	LREs 	available 	to perform a 	limited number 	of 	special
2The parties' 	MOU expired June 30, 	1995. 	Neither party
disputes 	the 	application of 	the 	terms 	involved 	in the 	instant
dispute.
3These 	tests 	are given to drivers with physical 	or mental
disabilities, 	or who lack skill 	or knowledge due 	to age or
disability.
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drives. 	Thus, 	some LREs do not 	receive 	the 	$75 	stipend because
it 	is 	not possible 	for all 	examiners 	to meet the 25 percent 	time
requirement 	in the MOU. 	That 	result gives 	rise 	to the 	instant
unfair practice 	charge.
In 	February 	1995, 	DMV Labor Relations 	Officer Bruce Arbuckle
(Arbuckle) 	wrote CAUSE, 	stating that DMV intended to assign
special 	drives 	to non-CDL LREs as well 	as 	CDL LREs. 	He promised
that 	the union would be 	notified when an 	effective 	date was
selected.
On April 	24, 	1995, 	Arbuckle 	informed CAUSE that 	there may be
situations 	where 	individual 	CDL examiners 	will 	not 	qualify 	for
the differential pay. 	CAUSE did not 	request 	to meet 	and confer
at 	that point.
On or about September 16, 	1995, 	DMV informed CAUSE that
beginning on October 1, 	1995, 	all 	LREs would be given training 	to
do special 	drives. 	DMV further stated that 	this was 	a 	"set
decision" 	and schedules were already in place. 	CAUSE did not
request 	to meet 	and confer at 	that point.
On October 25, 	1996, 	CAUSE filed an unfair practice charge
against 	the State. 	The complaint alleges 	that 	in September 1996,
the 	State 	changed 	its 	policy 	regarding a 	$75 	per month 	stipend 	to
perform special 	drive 	tests, 	without providing notice 	to 	CAUSE
and without 	affording 	CAUSE 	an opportunity to meet 	and 	confer
over the decision to 	implement 	the 	change or its 	effects. 	This
conduct was 	alleged 	to violate Dills Act 	section 3519. 	After a
hearing, 	the ALJ 	issued a proposed decision.
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PROPOSED 	DECISION
The ALJ presented the 	issues as: 	(1) 	did the State make an
unlawful 	unilateral 	change 	in 	classification of 	employees 	who
performed the 	special drives 	examination; 	and 	(2) 	did the State
make 	an unlawful 	change 	in 	compensation 	for examiners 	who perform
special 	drives?
Regarding 	the 	first 	allegation, 	the ALJ found that 	the 	State
clearly notified CAUSE 	in 	February and April 	1995 	of 	its 	intent
to assign special 	drives 	to non-CDL LREs. 	However, 	he 	found no
evidence 	of 	a demand by CAUSE 	to meet 	and confer on this 	issue.
Accordingly, 	he dismissed that allegation.
The ALJ 	found a violation on 	the 	second allegation.
EXCEPTIONS 	AND 	RESPONSE
On appeal, 	the State asserts 	that 	it never paid stipends 	for
the performance of 	special drives. 	Instead, 	its past practice
was 	to pay the 	stipends 	for the performance of all 	types 	of 	CDL
examinations, 	as provided in the MOU. 	This payment 	occurred when
a CDL LRE spent at 	least 	25 percent 	of his 	time 	conducting CDL
examinations. 	There was 	no 	separate past practice 	or contractual
obligation to pay a 	stipend for special 	drives. 	CAUSE 	responds
by 	supporting 	the ALJ's 	ruling, 	essentially arguing 	that 	stipends
were paid for special 	drives according to past practice, 	not 	the
parties' MOU.
DISCUSSION
Change 	in 	Classification Allegation
CAUSE did not 	file 	exceptions 	to 	the ALJ's 	dismissal 	of 	this
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allegation, 	so we do not discuss 	it 	further.
Change 	in 	Compensation Allegation
The 	issue before us 	is whether the 	fact that 	certain LREs 	do
not 	receive 	a 	$75 	stipend 	in 	certain pay periods 	constitutes
evidence 	of a unilateral 	change 	in compensation. 	As 	the ALJ
recognized, 	an employer's unilateral 	change 	in terms and
conditions 	of 	employment within the 	scope 	of 	representation 	is,
absent a valid defense, 	a per se 	refusal 	to negotiate and
violates 	the Dills Act. 	(Regents 	of 	the University of 	California
(1985) 	PERB Decision No. 	520-H; 	Pajaro Valley Unified School
District 	(1978) 	PERB Decision No. 	51; 	and Davis Unified School
District, 	et al. 	(1980) 	PERB Decision No. 	116.) 	To prevail on a
complaint 	of unilateral 	change, 	the 	charging party must 	establish
by a preponderance 	of 	the 	evidence 	that 	all 	of 	the 	following
elements 	are met: 	(1) 	the 	respondent has breached or otherwise
altered the parties' 	written agreement 	or 	its 	own established
past practice; 	(2) 	such action was 	taken without giving the
exclusive 	representative 	notice 	or an 	opportunity 	to bargain 	over
the 	change; 	(3) 	the 	change 	is not merely an isolated breach of
the contract, 	but amounts 	to a change of policy 	(i.e., 	having a
generalized 	effect 	or 	continuing 	impact 	on bargaining members'
terms and conditions of employment); 	and 	(4) 	the change in policy
concerns 	a matter within the 	scope 	of 	representation. 	(Grant
Joint Union High School District 	(1982) 	PERB Decision No. 	196;
Pajaro, 	supra: 	and Davis. 	supra.)
We 	find 	that 	dismissal 	of 	this 	charge 	is 	warranted because
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the 	first 	element 	has not been shown. 	CAUSE has 	not 	established
that 	DMV breached 	or otherwise altered 	either 	the parties'
written agreement 	or past practice.
Written 	Agreement
The payment 	of 	stipends 	is 	governed by Article 	19.19 	of 	the
parties' 	MOU. 	It provides 	that CDL LREs who perform all 	types of
CDL tests 	(not 	just 	special 	drives) 	receive a 	stipend when
certain conditions are met. 	Those conditions are that: 	(1) 	the
LRE must be a CDL LRE; 	(2) 	the LRE must be designated by
management 	as 	a CDL examiner 	for a 	specific work location; 	and
(3) 	the 	LRE must 	spend an average of 25 percent 	of his 	time on
duty conducting CDL drive 	tests. 	CAUSE does not 	allege 	that
LREs 	who meet 	these 	three 	conditions 	fail 	to receive 	the 	stipend.
Therefore, 	CAUSE has 	not demonstrated a breach of 	the parties'
agreement.
Established 	Past 	Practice
Likewise, 	CAUSE offers no evidence 	for 	its assertion that
DMV paid 	stipends 	for the performance 	of 	special 	drives 	as part
of a distinct past practice outside 	the MOU. 	For example,
evidence 	that 	LREs 	receive 	the 	stipend even 	if 	they do not meet
the 	contractual 	criteria might 	have been persuasive 	to 	show 	the
existence 	of 	such a past practice. 	No 	such evidence was
proffered.
The bottom line 	is 	that 	those LREs who do not meet 	the 	25
percent 	figure are not, 	and have not been, 	entitled to receive
the 	stipend. 	Since CAUSE has 	not 	shown any deviation from the
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parties' 	MOU or past practice, 	there 	is no basis 	for a unilateral
change violation.
ORDER
The 	unfair practice 	charge 	and 	complaint 	in Case
No. 	SA-CE-897-S 	are hereby DISMISSED.
Members Amador and Jackson 	joined 	in 	this 	Decision.
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