State of California (Employment Development Department) (PERB 1284S)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA STATE 	EMPLOYEES
ASSOCIATION,
Charging 	Party,
v.
STATE 	OF CALIFORNIA 	(EMPLOYMENT
DEVELOPMENT DEPARTMENT),
Respondent.
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) 	Case No. 	SA-CE-930-S
PERB Decision No. 	1284-S
September 	16, 	1998
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Appearances: 	Howard L. 	Schwartz, 	Attorney, 	for California State
Employees Association; 	State 	of 	California 	(Department 	of
Personnel Administration) 	by Edmund K. 	Brehl, 	Labor Relations
Counsel, 	for State of 	California 	(Employment Development
Department).
Before Caffrey, 	Chairman; 	Johnson and Jackson, 	Members.
DECISION
JOHNSON, 	Member: 	This 	case comes before the Public
Employment 	Relations 	Board 	(Board) 	on appeal by 	the 	California
State 	Employees Association 	(CSEA) 	of 	an administrative 	law
judge's 	(ALJ) 	proposed decision 	(attached). 	The ALJ dismissed
the 	charge which alleged 	that 	the 	State 	of 	California 	(Employment
Development Department) 	(State) 	violated section 3519(a), 	(b) 	and
(c) 	of the Ralph C. 	Dills Act 	(Dills Act)1 by unilaterally
pill
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
1Dills	s 	Act 	is 	codified at 	Government 	Code 	section 3512
et seq. 	Section 3519 	states, 	in pertinent part:

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.
increasing 	the 	number of 	determination 	interviews 	scheduled 	for
Employment 	Program Representatives 	to 	16 	per day.
The Board has 	reviewed the 	entire 	record, 	including
the proposed decision, 	CSEA's 	exceptions 	and the 	State's
response. 	The Board finds 	the ALJ's 	findings 	of 	fact and
conclusions 	of 	law to be 	free 	of prejudicial 	error and adopts
them as 	the decision of 	the Board 	itself.
ORDER
The 	unfair practice 	charge 	and 	complaint 	in Case
No. 	SA-CE-930-S 	is hereby DISMISSED WITHOUT LEAVE TO AMEND.
Chairman Caffrey's 	dissent begins 	on page 	3.
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CAFFREY, 	Chairman, 	dissenting: 	The State of California
(Employment Development Department) 	(State or EDD) 	violated
section 3519(a), 	(b) 	and 	(c) 	of the Ralph C. 	Dills Act 	(Dills
Act) 	by unilaterally 	increasing 	the 	number 	of 	daily determination
(Det) 	interviews 	to be 	completed by Employment 	Program
Representatives 	(EPR) 	without providing 	the 	California State
Employees Association 	(CSEA) 	with notice and the 	opportunity to
bargain.
DISCUSSION
To prevail 	in a unilateral 	change 	case, 	the 	charging party
must 	establish that 	the 	employer, 	without providing 	the 	exclusive
representative with notice 	or 	the 	opportunity 	to bargain,
breached or altered the parties' 	written agreement 	or established
past 	practice 	concerning a matter within 	the 	scope 	of
representation, 	and that 	the 	change had a generalized effect 	or
continuing 	impact 	on the 	terms 	and conditions 	of 	employment 	of
bargaining unit members. 	(Pajaro Valley Unified School 	District
(1978) 	PERB Decision No. 	51 at p. 	5; 	Grant Joint Union High
School District 	(1982) 	PERB Decision No. 	196 at p. 	9.)
Effective January 2, 	1997, 	the State 	increased the number of
Det 	interviews assigned to most 	EPRs 	throughout 	the 	state. 	It 	is
undisputed that 	the 	subject 	of 	workload 	is 	within the 	scope 	of
representation. 	(Davis Joint Unified School District 	(1984) 	PERB
Decision No. 	393 	at p. 	14.) 	It 	is also clear that the disputed
conduct here, 	if 	determined to be a 	change, 	had a generalized and
continuing 	impact 	on the 	terms 	and conditions 	of 	employment 	of
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bargaining unit members. 	Additionally, 	the State 	in its 	response
to CSEA's 	exceptions 	admits 	that 	it 	did not provide 	CSEA with
notice 	"of 	any anticipated 	change 	in 	scheduled 	interviews 	per EPR
per day" 	since 	the 	State maintains 	that 	the 	established past
practice allowed for such variations.1 Therefore, 	this 	case
turns 	on 	the question of whether the 	change 	in Det 	interview
workload 	implemented by 	the 	State 	in January 	199 7 	was 	consistent
with 	or altered 	the 	established past practice.
In his proposed decision, 	the 	Public 	Employment 	Relations
Board 	(Board) 	administrative 	law judge 	(ALJ) 	concluded that a
general 	workload 	increase 	of 	two Det 	interviews 	per day had been
implemented by the State 	in January 1997. 	However, 	the ALJ,
citing Oakland Unified School 	District 	(1983) 	PERB Decision
No. 	367 	(Oakland USD), 	concluded that the record did not
establish 	that 	the 	increase 	so 	deviated 	from the past 	practice 	as
1As a 	result 	of 	this admission, 	the State's assertion that
CSEA waived 	its 	right 	to bargain over 	the 	alleged 	change 	fails.
When an employer does 	not 	provide 	adequate 	notice 	of 	a proposed
change, 	the 	exclusive 	representative's 	failure 	to request
bargaining 	is 	not 	considered a waiver. 	(Beverly Hills Unified
School District 	(1990) 	PERB Decision No. 	789 at pp. 	9-10.)
Similarly, 	when a 	request 	to bargain would be 	futile, 	such as
when a unilateral 	change has 	already been 	implemented, 	or 	if 	the
employer has 	already made 	a 	firm decision 	to 	implement 	the
change, 	the exclusive representative does not waive 	its 	right 	to
bargain by not 	requesting negotiations. 	(San 	Francisco 	Community
College District 	(1979) 	PERB Decision No. 	105 at p. 	17; 	Arcohe
Union School District 	(1983) 	PERB Decision No. 	360 at p. 	11;
Morgan Hill 	Unified School 	District 	(1986) 	PERB Decision
No. 	554a at p. 	6.) 	Additionally, 	the exclusive representative's
failure 	to 	request 	bargaining 	in previous 	unilateral 	changes 	does
not 	constitute 	a 	continuing waiver of 	its 	right 	to bargain 	over
subsequent 	changes. 	(San Jacinto Unified School 	District 	(1994)
PERB Decision No. 	1078, 	proposed dec. 	at p. 	23.)
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. . .
to 	change 	its 	"quantity and kind." 	As a result, 	the ALJ
dismissed 	the 	charge, 	finding 	that 	CSEA had 	failed 	to 	establish
by a preponderance 	of 	the 	evidence 	that 	an unlawful 	unilateral
change 	had 	occurred.
I disagree. 	In Oakland USD, 	the Board concluded that a
nearly 	tenfold 	increase 	in 	the 	amount 	of 	subcontracting 	done by
the 	employer 	altered 	the 	established past 	practice 	and
constituted a unilateral 	change, 	because 	the magnitude 	of 	the
increase was 	not 	consistent 	with 	the 	quantity and kind 	of
subcontracting previously done by the 	employer. 	In my view, 	the
record here 	also 	supports 	a 	finding 	that 	the January 	1997
increase 	in workload differed 	in quantity and kind 	from 	the
established past 	practice 	with 	regard 	to Det 	interview workload
changes made by EDD.
There are at 	least 	three 	clear 	indications 	in the 	record
which lead me 	to this 	conclusion. 	First, 	the January 1997
increase 	in Det 	interview workload was 	statewide, 	affecting
hundreds 	of 	EPRs 	in scores 	of 	EDD 	field offices. 	There 	is no
evidence 	that 	the past practice with 	regard 	to workload 	changes
includes 	any 	change 	having 	such a broad 	statewide 	application.
Instead, 	previous workload changes appear to have been office-
specific, 	made by EDD 	to address unique workload 	factors 	relating
to individual offices. 	Second, 	Joint Exhibit 	1, 	which documents
workload 	in more 	than 20 	EDD 	offices 	prior and 	subsequent 	to 	the
January 1997 	change, 	shows 	a consistent pattern of 	increased Det
interviews. 	While 	the number of 	interviews 	scheduled varies 	by
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office, 	there 	is 	little or no variation in the 	fact 	that 	EPRs 	in
each 	office 	experienced a 	significant 	increase 	in Det 	interview
workload subsequent 	to the January 	1997 	change. 	Third, 	the
State's 	assertion 	that 	the 	increase 	in 	scheduled Det 	interviews
was 	offset 	by various 	work 	improvements 	and 	streamlining 	designed
to save approximately two hours per day, 	is 	itself an admission
that 	the 	January 	1997 workload 	increase was 	substantial 	enough as
to 	require mitigating measures 	to be 	taken. 	As 	noted by the ALJ,
whether 	this 	streamlining actually accomplished 	the 	goal 	of
making 	time 	available 	for EPRs 	to 	handle 	the 	increased Det
interview workload 	is 	disputed by the parties. 	It 	cannot be
concluded 	from 	the 	record 	that 	any 	increased workload 	associated
with 	the 	increase 	in Det 	interviews 	was 	offset by the 	State's
streamlining 	and mitigation 	efforts.
In 	summary, 	CSEA has 	demonstrated by a preponderance 	of 	the
evidence 	that 	the 	State unilaterally 	increased 	the Det 	interview
workload of 	EPRs 	in January 1997. 	The 	change was not 	consistent
with 	the past practice with regard to workload adjustments, 	and
was 	made 	without 	providing 	CSEA with notice 	and 	the 	opportunity
to bargain. 	As a result, 	I 	conclude that 	the State violated
section 3519(a), 	(b) 	and 	(c) 	of the Dills Act by its conduct, 	and
I 	would order 	the 	appropriate 	remedy.
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STATE 	OF 	CALIFORNIA
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA STATE 	EMPLOYEES
ASSOCIATION,
Charging 	Party,
v.
STATE 	OF 	CALIFORNIA 	(EMPLOYMENT
DEVELOPMENT 	DEPARTMENT),
Respondent.
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) 	Unfair 	Practice
Case No. 	SA-CE-930-S
PROPOSED DECISION
(2/19/98)
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Appearances: 	Howard Schwartz, 	Legal Counsel, 	for California
State Employees Association; 	Edmund K. 	Brehl, 	Labor Relations
Counsel, 	for State of 	California 	(Employment Development
Department).
Before Ronald E. 	Blubaugh, 	Administrative Law Judge.
PROCEDURAL 	HISTORY
This 	case presents 	the question of whether the 	State 	of
California 	(State) 	failed to negotiate 	in good faith when 	it
implemented new production 	levels 	for employees 	in 	a 	large
department. 	The 	exclusive 	representative 	of 	the 	affected
employees 	asserts 	that 	the 	change 	in workload was 	a negotiable
decision 	that 	was 	implemented unilaterally.
Although acknowledging 	that 	workload usually 	is 	negotiable,
the 	State 	argues 	that 	in the 	circumstances 	here 	the 	change was 	a
managerial prerogative. 	Alternatively, 	the State argues that
production 	levels 	have been 	changed periodically over 	the years
and that 	the 	disputed change was 	consistent 	with past 	practice.
The 	California 	State 	Employees Association 	(CSEA or Union)
commenced this action on January 6, 	1997, 	by filing an unfair
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practice 	charge 	against 	the 	State 	Employment 	Development
Department 	(EDD). 	The Office of the General 	Counsel of the
Public Employment 	Relations Board 	(PERB 	or Board) 	followed on
January 23, 	1997, 	with a complaint against the State. 	The State
answered the complaint on February 17, 	1997.
The complaint alleges that prior to December of 	1996, 	it
was 	the policy of 	EDD that 	employees 	in the 	class 	of 	Employment
Program Representative were 	expected to 	complete 	12 	determination
interviews per day. 	During or about January of 	1997, 	the
complaint 	continues, 	the 	respondent 	changed this policy by
increasing the 	performance 	requirement 	to 	16 	determination
interviews per day. 	This action, 	the complaint alleges, 	was
taken without 	prior notice 	to 	CSEA and without 	having 	afforded
CSEA the 	opportunity to meet 	and confer over the 	decision 	and/or
its effects. 	By making this change, 	the complaint alleges, 	the
State violated Ralph C. 	Dills Act 	(Dills Act) 	section 3519(c)
and, derivatively, 	(a) and (b).1
•••Unless otherwise indicated, 	all 	statutory references are to
the Government 	Code. 	The Dills Act 	is 	codified at 	section 3512
et 	seq. 	In relevant part, 	section 3519 provides as 	follows:
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
employees because 	of 	their exercise of 	rights
guaranteed by this 	chapter. 	For purposes 	of
this subdivision, 	"employee" 	includes an
applicant 	for employment 	or 	reemployment.
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(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.
The 	State 	filed an answer to the 	complaint 	on February 17,
1997, 	admitting the 	jurisdictional 	allegations but 	denying all
other allegations. 	The 	answer also 	set 	out various 	affirmative
defenses 	that 	will 	be 	dealt with herein as necessary. 	A hearing
was 	conducted 	in 	Sacramento over 	four non-consecutive 	days 	in
August 	and September. 	With the 	filing of briefs, 	the 	case was
submitted for decision on January 21, 	1998.
FINDINGS OF 	FACT
The 	respondent 	is 	the 	State employer under the 	Dills Act.
EDD 	is 	a department 	of the State. 	CSEA is 	the exclusive
representative 	of nine State 	employee bargaining units, 	including
unit 	1, 	administrative, 	financial and staff services, 	where the
events at 	issue took place.
The 	collective 	bargaining agreement 	covering unit 	1 	expired
on June 	30, 	1995. 	Although the parties have been in negotiations
continuously since 	that 	date, 	they had not 	entered a 	successor
agreement 	as 	of 	the 	completion of 	the hearing 	in the present
case. 	All 	events 	at 	issue occurred after the expiration of 	the
agreement.
EDD 	is 	the 	State 	agency that 	administers 	the 	federal
unemployment 	insurance program 	in California. 	The 	department
handles 	more 	than three million 	claims 	for unemployment 	benefits
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each year. 	EDD conducts 	its 	operations 	through field offices 	and
telephone 	call 	centers 	located throughout 	the 	State. 	The 	number
of EDD field offices varies between 140 	and 160, 	depending upon
the 	rate 	of unemployment. 	Individuals 	seeking unemployment
benefits may file their claims 	in person or, 	increasingly, 	by
telephone 	at 	the EDD 	field offices.
The 	unemployment 	insurance 	program 	is 	financed by employer
taxes paid to the 	federal 	government. 	Subject 	to the 	annual
authorization of the United States 	Congress, 	the 	federal
Department 	of 	Labor provides 	funds 	for worker benefits 	and
reimburses 	each 	state 	for the 	cost 	of 	the 	operation of 	the
program.
Although the 	federal 	budget 	projects 	state-by-state
expenditure levels, 	the 	states do not receive 	flat grants.
Rather, 	they are 	compensated according to a count 	of 	specific
tasks 	which must 	be 	completed 	in the 	operation of 	the program.
The Department 	of 	Labor 	identifies 	the 	activities 	that 	will
qualify 	in 	the workload 	count 	and 	instructs 	the 	states 	on how the
tasks 	are 	to be 	completed. 	The 	states periodically report 	their
workload counts 	to 	the Department 	of 	Labor.
Once each fiscal quarter, 	the Department of Labor conducts a
validation 	study of 	each state's 	counting procedure 	to 	determine
an error rate. 	Based upon the error rate, 	a portion of 	a 	state's
workload count 	may be 	disallowed and not 	reimbursed. 	The 	federal
reimbursement 	for performance 	of 	the 	specifically counted 	tasks
4

1... . . . 	is 	intended to 	cover the 	administrative 	cost 	of 	the 	entire
program.
Among the 	reimbursable 	tasks 	is 	the 	determination of 	whether
a particular 	applicant 	is 	eligible 	for unemployment 	benefits.
Determinations 	are 	made 	on 	the 	basis 	of 	an 	interview conducted by
an EDD employee with an applicant 	and the 	former employer. 	The
interview 	involves 	asking 	the 	applicant 	and 	former 	employer 	to
respond 	to 	certain questions 	in order 	to 	determine 	eligibility.
When a worker makes 	a claim for unemployment benefits, 	the
former employer has 	10 	days 	in which to 	file a protest 	of 	the
claim. 	If 	the 	employer does 	not 	oppose 	the 	claim and there 	is 	no
eligibility issue, 	the benefits will be paid without 	a
determination 	interview. 	There 	are 	about 	700,000 	other cases
each year where 	there 	is 	an eligibility issue 	that 	is 	discovered
at 	the 	time 	the claim is 	filed. 	These cases are 	scheduled
for 	determination 	interviews 	directly 	from 	the 	initial 	claim
filing point. 	Determinations 	of 	eligibility usually are
completed within eight 	to 	14 	days 	from the 	date 	the 	claim is
filed.
The 	600 	to 	650 	employees who conduct benefit 	determination
interviews 	are EDD employment program representatives. 	In EDD
colloquialism, 	they are known as 	"Det" 	interviewers. 	They are
members 	of bargaining unit 	1 	and it 	is 	their workload that 	is
at issue here.
Each morning, 	a Det 	interviewer calls up on his or her
personal 	computer the 	list 	of 	interviews 	that 	are 	to be 	conducted
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that 	day. 	The 	interviews 	are 	conducted by telephone. 	Applicants
have 	been notified 	in writing 	that 	an 	interviewer will 	call 	them
on a 	specific 	day, 	within a 	specific 	two-hour period. 	The
interviews 	are 	conducted within eight 	to 	14 	days 	of 	the 	filing of
an application 	for unemployment 	benefits.
The 	Det 	interviewer asks 	questions 	designed to 	establish
whether the 	applicant 	is 	eligible 	for unemployment benefits.
These 	include 	questions 	about 	the 	circumstances 	of 	the
applicant's 	severance 	from his/her prior 	job, 	whether the
applicant 	was 	separated 	for cause 	or quit 	voluntarily. 	The 	Det
interviewer also will 	seek 	to 	determine whether 	the 	applicant 	is
able 	and available 	for work, 	whether the 	applicant 	has wages 	from
another source 	and whether the 	applicant 	is 	seeking work. 	If 	the
Det 	interviewer 	is unable 	to 	contact 	the 	applicant 	at 	the
scheduled time 	or 	is unable 	to 	contact 	the 	employer, 	the 	case
will 	be 	carried over to 	the 	next 	day as 	backlog.
Ultimately, 	the 	Det 	interviewer 	issues 	either a notice of
disqualification or a determination of 	eligibility. 	If 	a
determination of 	eligibility is made, 	the 	applicant will 	receive
benefits. 	Benefits will 	continue 	for the number of weeks
prescribed by 	law 	if 	the 	applicant 	maintains 	eligibility
throughout. 	Persons 	receiving benefits must make 	regular,
periodic 	certifications 	of 	continued 	eligibility by 	completing 	an
EDD 	questionnaire.
In 1996, 	the Department 	of Labor notified EDD that 	it
would implement 	a change effective January 2, 	1997, 	in the
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activities 	that 	could be 	counted 	for purposes 	of 	reimbursement.
Among the changes, 	was a decision to count 	for reimbursement
the 	resolution of 	questions 	raised by a benefit 	recipient's
"off-pattern" 	answers 	to questions 	on the 	eligibility
questionnaire. 	"Off-pattern" 	answers 	are 	responses 	that 	raise
the possibility that 	the 	recipient 	is 	no 	longer eligible 	for
unemployment 	benefits.
Telephone 	contacts 	to 	resolve 	questions 	raised by
off-pattern 	answers 	previously were 	considered 	clarifications
and were not 	counted as 	reimbursable workload. 	Beginning 	in
1997, 	such contacts were counted as determination interviews.
This 	single 	change 	resulted in a 	996,000 	increase 	in the number
of 	countable, 	reimbursable 	determination 	interviews 	conducted
in a year. 	Although this was workload that previously had to be
accomplished, 	the 	clarification calls previously were not
considered 	to be 	determination 	interviews 	and did not 	appear 	on
the daily schedule of Det 	interviewers. 	Without 	this change, 	EDD
employees 	would 	have 	made 	approximately 	1.2 	million 	countable,
reimbursable 	eligibility determinations 	in 	1997. 	With the
change, 	the 	department 	anticipated that 	it would make 	nearly 2.2
million 	eligibility determinations.
The 	increased number of 	eligibility determinations 	did not
mean that 	California would receive 	more 	funds 	from the 	federal
Department 	of Labor. 	The principal 	impact was that 	the 	State was
required to 	complete 	the 	higher number of 	determination
7
7

interviews 	in order to continue 	receiving the 	same 	amount 	of
funding.
By letter of November 25, 	1996, 	EDD labor relations chief
Jeff 	Schrader notified CSEA that effective January 1, 	1997, 	the
State was 	suspending existing performance 	standards 	for Det
interviewers. 	Mr. 	Schrader's 	letter explained that 	the
suspension of 	the performance 	standard was 	related 	to new
Department 	of 	Labor reporting requirements. 	His 	letter pledged
that 	any changes 	to 	the performance 	standard or any 	subsequent
reinstatement 	of 	the 	standard would be made 	in accord with
language 	in the 	expired memorandum of understanding. 	The 	letter
is 	silent 	regarding any prospective 	change 	in the number of
determination 	interviews 	that 	Det 	interviewers 	would be 	expected
to complete 	in a day.
The 	performance 	standard 	that 	was 	suspended 	required Det
interviewers 	to 	complete 	1.5 	to 	1.79 	determinations 	per hour.
The 	standard was 	adopted 	following 	a 	1988 	pilot 	study conducted
in 13 	EDD offices. 	Employees who completed more 	than the
standard 	range 	were 	considered outstanding 	and 	those 	who
completed 	fewer were 	considered below 	standard. 	Below 	standard
employees 	were 	given 	assistance 	and training 	to bring 	their
production 	levels up 	to 	standard. 	Probationary employees who
failed to meet 	the 	standard were 	subject 	to 	termination.
Deborah Bronow, 	chief 	of 	the 	EDD Unemployment 	Insurance
Division, 	testified that 	the performance 	standard was 	suspended
in 	1997 because 	it would have no meaning under the new federal
8

rules. 	She 	said that under the 	new definition of 	countable
activities, 	there would be a 25 percent 	increase 	in determination
counts 	from an unchanged workload. 	Therefore, 	production at 	the
rate 	set 	out 	in 	the 	old 	standard would be 	inadequate 	to meet 	the
new level 	of 	eligibility determinations.
Upon receipt of Mr. 	Schrader's November 25 	letter, 	CSEA
immediately requested that 	the 	State 	meet 	and 	confer 	regarding
the 	suspension of 	the workload standard. 	By letter of
December 4, 	Rosemarie Duffy, 	the 	CSEA staff member assigned to
unit 	1, 	asked 	"to meet 	and confer over these changes 	and to
discuss 	the 	overall 	direction the Department 	of 	Labor will 	be
taking in the 	future regarding determinations." 	Ms. 	Duffy
testified that 	at 	the time 	she wrote 	the 	letter, 	she had heard
rumors 	about 	a possible 	increase 	in the 	number of 	interviews
that 	would be 	assigned each day to Det 	interviewers 	but 	nothing
was certain.
It was not 	long until 	the 	rumors were 	confirmed. 	Managers
at various 	EDD offices began advising employees 	in 	late November
and early December of 	1996 	of 	an 	imminent 	increase 	in the 	number
of 	interviews 	they would be assigned each day. 	Then, 	the
department 	conducted training classes 	at 	the various 	EDD offices
to explain the 	forthcoming changes 	to Det 	interviewers. 	The
employees were 	told that 	in order to meet 	the new Department 	of
Labor standards, 	each interviewer would have to complete 	16
determination 	interviews 	per 	day.
9

Ms. 	Bronow testified that 	the number 16 was 	arrived at by
an arithmetic 	calculation. 	She divided the 	Department's budgeted
number of 	Det 	interviewers 	into 	the 	anticipated number of
interviews 	that 	would be 	required under 	the 	new method of
counting. 	This produced an average 	of 	16 	interviews per
interviewer per day. 	She 	testified that 	she 	anticipated that
about 	seven of 	these would be 	quick determinations 	of 	5 	to 	7
minutes 	each 	involving matters 	that 	formerly would not 	have 	been
counted as determination interviews. 	In any event, 	she
testified, 	the number 16 was 	entirely 	"budget 	driven."
The 	State 	acknowledges 	that 	it 	provided CSEA with no notice
of 	its 	intent 	to 	increase 	the number of 	determination 	interviews
that 	would be 	assigned each day. 	Department 	administrators 	gave
no 	notice because 	they did not 	believe 	they were making a
negotiable 	change. 	From the 	first 	time 	CSEA raised the 	issue,
EDD took 	the position that 	the 	assignment 	of 	interviews was 	a
scheduling matter. 	Mr. 	Schrader testified that 	he 	did not 	advise
CSEA of 	the 	impending 	change because 	scheduling always 	had been
handled as 	a managerial 	prerogative 	by the various 	field offices.
He 	said 	schedules 	have varied 	from office 	to office 	and there
never 	has 	been any uniform practice 	on 	the 	number of 	interviews
assigned 	to 	interviewers 	each day.
Effective January 2, 	1997, 	EDD increased the number of
determination 	interviews 	assigned 	to most 	interviewers 	throughout
the State. 	Although the 	increase was general, 	it was not 	the
uniform change 	from 12 	to 	16 	that 	is 	alleged in the 	complaint.
10

It 	is 	absolutely clear that 	there was no uniform standard of 	12
interviews per day before 	January of 	1997 	and there was 	no
uniform standard of 	16 	interviews per day after January of 	1997.
There were variations among employees 	in a 	single 	office 	and
there were variations 	among offices. 	There 	also were 	scheduling
variations according to the day of 	the week, 	both before and
after January of 	1997. 	Documents 	entered 	into 	the 	record as 	a
joint 	exhibit 	demonstrate 	the wide 	range 	of 	determination
schedules 	that 	EDD 	interviewers 	worked before 	and 	after 	January
of 	1997. 	Schedules at several of the offices are 	set out below.
At 	the 	San Bernardino Adjudication Center, 	determination
schedules 	of 	journey level 	employees 	contained 14 	interviews per
day in June 	of 	1996. 	During the period 	from July 15 	through
August 23, 	1996, 	determination schedules contained 16 	interviews.
From August 	26 	through February 7, 	1997, 	determination schedules
contained 15 	interviews per day. 	From February 10, 	1997, 	through
May 30, 	1997, 	determination schedules contained 16 	interviews per
day.
At 	the Salinas 	field office, 	12 	to 	13 	determinations were
scheduled per day for each interviewer during 1996. 	In 1997, 	16
to 	20 	determinations 	were 	scheduled per day for each 	interviewer.
At 	the 	San Diego Adjudication Center, 	during June of 	1996,
23 	interviewers were 	assigned to conduct 	14 	interviews per day
for 	four days 	a week 	and 	four 	interviewers 	were 	assigned 	to
conduct 	13 	interviews 	for four days a week. 	All 	employees worked
the 	fifth day as 	a 	"write-up" 	day. 	From July through December of
11
"

1996, 	most 	staff members were assigned to 	16 	interviews 	four days
a week with the 	fifth day being a 	"write-up" 	day. 	In January and
February of 	1997, 	most employees were assigned 20 	interviews per
day for 	four days with a write-up day. 	Most 	of 	the 	remaining
employees were assigned 16 	interviews per day, 	five days per
week.
At 	the 	Redding 	field office, 	Det 	interviewers were 	assigned
to 	conduct 	14 	interviews per day from June 	through December of
1996. 	In January of 	1997, 	they were assigned 16 per day.
At 	the 	Pleasant Hill 	field office, 	Det 	interviewers who
worked an eight-hour day were 	assigned to 	conduct 	14 	interviews
per day 	in the period from June 	through December of 	1996. 	In
January of 	1997, 	they were 	assigned 16 per day.
At 	the Hanford field office, 	journey level 	interviewers were
assigned 	12 	interviews per day in 	1996 	and 	16 	interviews per day
in 1997.
At 	the 	Canoga Park 	field office, 	the 	schedules of Det
interviewers 	were unchanged 	for the period 	from June 	1, 	1996,
through March 30, 	1997. 	Although the 	schedules varied according
to the day of 	the week, 	the 	interviewers were 	assigned a daily
average 	of 	13.2 	to 	13.6 	interviews per day throughout 	the period.
At 	the 	Fresno 	field office, 	during the period of August
through November of 	1996, 	interviewers were assigned 14
interviews 	per day 	four days 	a week and 	seven on 	the 	fifth day.
In January of 	1997, 	the number was 	increased to 	16 per day four
days 	a week and eight 	on the 	fifth day.
12

1 . . 	At 	the Vallejo 	field office, 	Det 	interviewers were 	assigned
12 	interviews per day in June and July of 	1996, 	14 	per day in
August of 	1996 	through January of 	1997, 	and 16 per day from
February through April 	of 	1997.
At 	the Oroville 	field office, 	Det 	interviewers were 	assigned
differing amounts 	of 	determinations 	on different 	days 	of 	the
week. 	During the period from June 	1 	through December 31, 	1996,
employees 	on a 	standard 40-hour work week 	conducted 	63 	interviews
per week. 	In January and February of 	1997, 	they conducted 80
interviews per week. 	From March 1 	through April 	10 	of 	1997, 	they
conducted 70 	interviews per week. 	And from April 	10 	through
April 30, 	1997, 	they conducted 61 	interviews per week.
CSEA witnesses 	described various 	negative 	impacts 	which 	they
attributed to workload-induced stress. 	Adrian Suffin, 	CSEA chief
job 	steward at 	the EDD office 	in San Francisco, 	testified that
after 	the 	change 	she 	constantly heard about 	employees with head
aches 	and stomach aches. 	She 	said some 	employees were 	almost 	on
the verge of 	tears 	and were upset 	because 	of 	the 	increased
workload. 	She 	identified one 	employee 	who 	filed a worker's
compensation 	claim which 	she 	attributed 	to 	the 	workload 	increase.
She 	also 	testified that 	employees 	were 	arriving early and working
late 	and through their breaks 	and 	lunch periods 	in order 	to 	keep
up with the work.
Other 	CSEA witnesses 	described 	increased 	sick 	leave 	in 	the
San Diego and San Bernardino 	field offices. 	Adia Canonizado, 	a
CSEA job 	steward at 	the 	EDD adjudication 	center 	in 	San Diego,
13

testified 	that 	sick 	leave 	usage 	practically doubled 	after 	the
increase 	in 	the workload. 	She 	identified employees who 	she 	said
had 	such 	increased 	levels 	of 	absence 	that 	they used up 	their 	sick
leave 	and were 	docked in pay. 	Blanca Rodriguez, 	CSEA steward and
labor council president, 	told a 	similar story regarding the 	EDD
office 	in San Bernardino.
But 	State witnesses 	challenged the 	assertions 	about
increased worker's 	compensation claims 	and 	sick 	leave 	usage.
Stan Okasaki, 	the workload coordinator at 	the 	EDD primary
adjudication center 	in San Francisco, 	testified that 	the 	employee
who 	had 	filed a worker's 	compensation 	claim 	in his 	office 	had
complained of 	tendinitis, 	not 	stress. 	He 	said he had seen
no 	increase 	in employees 	attempting 	to work 	additional,
uncompensated hours, 	before 	or after work 	shifts 	or through
lunch. 	He 	said whenever he 	sees employees working late, 	he 	tells
them to go home.
Margaret Robinson, 	an EDD supervisor in San Diego, 	produced
the 	sick 	leave 	records 	of 	each of 	the 	employees 	identified by
Ms. 	Canonizado as having increased sick leave usage. 	The 	records
showed no change 	in sick 	leave usage 	for any of 	the 	employees.
Ms. 	Bronow testified that 	EDD has 	detected no 	increase 	in 	sick
leave usage 	on a department-wide basis. 	She 	testified that 	for
the 	EDD operations branch, 	which includes more employees 	than Det
interviewers, 	employees 	averaged 	6.4 	hours 	of 	sick 	leave per
month 	in July of 	1996 	compared to 	5.9 	hours 	in July of 	1997.
14
i:·

Mr. 	Schrader produced 	statistics 	similarly 	showing no
statewide 	increase 	in workers' 	compensation claims. 	For the
first 	four months of 1996, 	there were 	192 workers' 	compensation
claims 	filed by operations branch employees. 	For the 	same period
in 1997, 	there were 148 workers' 	compensation claims filed by
operations branch employees. 	The number of 	claims 	based on
stress decreased from 16 	to 	14 	for the 	same periods.
Each of 	the 	EDD managers 	called as witnesses 	denied 	seeing
employees 	working 	through 	lunch or breaks 	or voluntarily
extending their work shifts. 	Ms. 	Robinson said that while 	some
employees 	do 	arrive 	for work early, 	they spend the pre-shift 	time
in the coffee 	room or outside, 	smoking. 	She said employees 	are
paid to work eight 	hours. 	"You do what you can do 	in eight
hours, 	and you're out of there," 	she said.
Simultaneous with the 	increased number of 	determinations,
EDD management 	implemented 	certain 	changes 	intended 	to 	simplify
the determination process. 	These changes, 	described as
"streamlining" 	by EDD, 	were 	intended to reduce by as much as 	two
hours 	the 	amount 	of 	time 	required to 	complete 	the 	quantity of
work assigned daily 	in 1996.
The 	changes 	included the 	creation of various 	forms 	and
standardized 	lists 	of 	questions 	that 	could be 	called onto
computer 	screens by Det 	interviewers. 	Another change 	involved
the 	transfer of 	certain 	clerical 	duties 	including 	filing 	and
mailing 	letters 	to 	secretaries.
15

The most 	significant 	change was 	a 	reduction 	in the 	number
of 	telephone 	calls 	which Det 	interviewers 	would be 	required to
make 	to applicants 	and their 	former employers. 	Formerly,
interviewers 	were 	expected to make 	a minimum of 	two 	attempts 	to
reach applicants 	and former employers. 	This meant 	that 	if 	there
was no answer to a telephone 	call 	or a call was not 	returned, 	a
Det 	interviewer would have 	to 	call 	at 	least 	one more 	time before
he/she 	could make 	a determination.
Beginning in January of 	1997, 	interviewers were 	required
to make only one 	telephone 	call 	to 	an applicant 	and one 	to the
former employer. 	Initially, 	Det 	interviewers were directed
that 	they could make 	a determination 	immediately 	if 	an 	applicant
failed to 	answer a 	telephone 	call 	during a 	scheduled 	interview.
A determination made 	in 	this 	circumstance 	would be 	a
disqualification 	from benefits. 	Immediate 	determinations 	soon
proved impractical, 	however, 	because applicants often had
legitimate 	reasons 	for not 	being present 	to 	answer a 	scheduled
telephone 	call. 	If 	an applicant 	later called back and
established eligibility, 	the 	disqualification would be 	rescinded.
Later in 1997, 	the 	"one call" 	rule was modified to wait until the
end of 	the 	next 	workday before 	making a determination that
disqualified 	a 	non-responding 	applicant.
Whether 	these 	changes 	actually 	simplified 	the 	work 	of 	Det
interviewers 	is much disputed. 	CSEA witnesses 	described at
length how the 	changes 	failed to reduce 	the workload. 	Some 	of
the 	changes, 	CSEA witnesses asserted, 	in fact 	increased the
16

workload. 	In particular, 	CSEA witnesses agreed, 	the conversion
to 	computer 	forms 	with 	standardized questions 	lengthened 	the 	time
to 	complete 	a determination 	for experienced Det 	interviewers.
Throughout 	the history of 	this 	dispute, 	the State has been
willing to negotiate with CSEA about 	the workload of 	Det
interviewers. 	From CSEA's 	first 	demand to bargain, 	EDD
administrators 	offered 	to bargain with 	CSEA over 	the 	workload
question. 	The 	State was willing to meet with CSEA at 	ad hoc
meetings 	scheduled 	solely to meet 	and 	confer over 	the workload
question at 	EDD.
CSEA, 	however, 	refused to bargain about the 	issue 	in any
forum other 	than at 	the 	main 	table 	where 	negotiations 	have 	been
on-going 	for more 	than two years 	for a new unit 	1 	contract. 	By
letters of December 24, 	1996, 	and January 31, 	1997, 	CSEA demanded
that 	the 	State 	rescind the 	increase 	in workload 	for Det
interviewers and refer the matter to the unit 	1 main table. 	CSEA
insisted 	that 	the 	State 	reinstate 	the previous workload
assignment until 	the unit 	1 negotiations were 	complete.
Subsequently, 	in the context of 	attempts 	to 	settle 	the
present 	case, 	CSEA has met with the 	State 	in ad hoc negotiations
about 	the workload of Det 	interviewers.
LEGAL 	ISSUE
Did the 	State unilaterally increase 	from 12 	to 	16 	the 	number
of 	daily 	determination 	interviews 	EDD 	employment 	program
representatives 	were 	expected 	to 	complete 	and 	thereby 	fail 	to
17

meet 	and confer 	in good faith 	in violation of 	section 	3519(c) 	and
derivatively 	(a) 	and 	(b)?
CONCLUSIONS 	OF LAW
If 	an employer makes 	a pre-impasse unilateral 	change 	in an
established, 	negotiable practice 	that 	employer violates 	its 	duty
to meet 	and negotiate 	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. 	(Davis Unified School 	District,
et al. 	(1980) 	PERB Decision No. 	116; 	State of California
(Department of Transportation) 	(1983) 	PERB Decision No. 	361-S.)
To prevail 	on a complaint 	of unilateral 	change, 	the
exclusive 	representative 	must 	establish by a preponderance 	of 	the
evidence 	that 	(1) 	the employer breached or altered the parties'
written agreement or 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 was not merely an isolated breach of 	the contract, 	but
amounts 	to a change of policy 	(i.e., 	has 	a generalized effect or
continuing 	impact 	upon the 	terms 	and conditions 	of 	employment 	of
bargaining unit members); 	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 	(Grant); 	(State
of 	California 	(Department 	of 	Forestry and Fire 	Protection) 	(1993)
PERB Decision No. 	999-S.
18

At 	issue here, 	CSEA argues, 	is a unilateral change 	in
the workload of Det 	interviewers. 	The change, 	CSEA contends,
was 	an 	increase 	of 	two 	interviews per 	interviewer per day,
boosting 	the workload from 12 	to 	14 	interviews per day for 	some
and from 14 	to 	16 	interviews per day for others. 	It 	is well
established, 	CSEA continues, 	that workload is a subject within
the 	scope 	of 	representation under all 	collective 	bargaining 	laws.
In support of 	this proposition, 	CSEA cites 	cases decided under
the Educational Employment Relations Act2 (EERA), 	the
Meyers-Milias-Brown Act3 and the National 	Labor Relations Act.4
Since the increase was made unilaterally, 	CSEA contends, 	it
constituted 	a 	failure 	to negotiate 	in good 	faith.
Anticipating arguments 	of 	the 	State, 	CSEA discounted any
contention that 	the workload 	increase 	was 	offset 	by EDD 	efforts
to streamline the interview process. 	First, 	CSEA argues, 	the
supposed 	streamlining 	did not 	reduce 	job 	tasks 	but 	actually made
the work more difficult. 	Moreover, 	CSEA continues, 	an employer's
efforts 	to 	streamline 	job procedures 	is 	itself negotiable.
Finally, 	CSEA rejects 	any effort 	by the 	State 	to argue 	that 	CSEA
has waived its 	right 	to bargain. 	The 	State 	cannot 	assert waiver
as a defense, 	CSEA argues, 	because the State did not timely raise
that defense in its answer. 	Furthermore, 	CSEA contends, 	the
State 	cannot 	assert 	waiver because 	the 	State never provided CSEA
2Section 3540 	et 	seq.
3Section 3500 	et 	seq.
4Chapter 7, 	29 U.S. 	Code section 141 et seq.
19

with 	timely notice 	of 	its 	plan to 	change 	workload prior 	to
reaching a 	firm decision to do 	so.
The 	State 	acknowledges 	that 	workload generally 	is 	a
negotiable 	subject 	under 	the 	EERA and 	in 	federal 	cases 	involving
the private sector. 	However, 	the State continues, 	PERB has held
that 	employers 	have 	the 	authority to make unilateral 	changes 	in
negotiable 	subjects 	if the purpose 	is 	to change the 	level 	of
service.5 Here, 	the State argues, 	the purpose of the change was
"to 	fully capture 	the 	state's 	share 	of 	the 	federal 	unemployment
insurance program," 	clearly a management prerogative. 	Only the
effects of the decision were negotiable, 	the State argues.
Insofar as 	the 	number of 	determination 	interviews 	scheduled
in a day is an effect, 	the State continues, 	there 	is no firm past
practice. 	The number of 	interviews 	scheduled 	in a day has varied
widely, 	both before and after January of 	1997, 	the State argues.
The 	number of 	scheduled 	interviews 	always 	has 	been 	set 	according
to the needs of the 	individual offices. 	Finally, 	the State
asserts, 	even if there was an obligation to negotiate, 	CSEA
waived 	its 	right 	to bargain by refusing to meet 	anywhere 	except
at 	the main negotiating table.6
The first question, 	therefore, 	is whether a change 	in the
number of 	determination 	interviews 	scheduled each day 	constituted
5In support 	of 	this proposition, 	the State 	cites Arcata
Elementary School District 	(1996) 	PERB Decision No. 	1163
(Arcata).
6The 	State 	cites 	State 	of 	California 	(Board of 	Equalization)
(1997) 	PERB Decision No. 	1235-S.
20

2. . . 	a matter within the 	State's 	bargaining obligation. 	Under Dills
Act 	section 3516, 	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.
As 	the parties have observed, 	it 	is well 	settled in both
public 	and private 	sector 	cases 	that 	workload 	is 	negotiable.
PERB 	has 	found workload to be 	a 	subject 	contained within 	"hours."
The 	rationale 	for this conclusion 	is 	set 	out 	in Davis 	Joint
Unified School District 	(1984) 	PERB Decision No. 	393 	(Davis).
There, 	the Board described the 	employment 	relationship as 	"an
agreement 	to the exchange 	of 	a 	specified amount 	of 	labor 	for a
specified amount 	of 	compensation." 	The 	Board observed 	that 	the
statutory term 	"hours" 	measures not 	only the 	amount 	of 	time 	but
also 	"the 	intensity of 	efforts 	expended."
The 	Board cited with approval 	federal 	cases 	that 	recognize
the 	term 	"hours" 	as 	authorizing the negotiability of 	"the 	amount
of 	labor, 	however quantified, 	which will be provided to the
employer." 	(Emphasis 	in the original.) 	The measurement 	of 	the
amount of labor, 	the Board wrote, 	is the 	subject of 	"workload."
The 	Board adopted the 	federal 	rule 	and 	found that 	under 	the
EERA the 	caseload of 	counselors 	was 	negotiable 	as 	reasonably
and 	logically related to 	"hours."7 California 	courts 	have
7See also, 	Fullerton Union High School District 	(1978) 	PERB
Decision No. 	53; 	Mount Diablo Unified School District 	(1983) 	PERB
Decision No. 	373.
21

reached the 	same 	conclusion 	for 	cases 	decided under the Meyers-
Milias-Brown Act.8
Contrary to the rationale of the State, 	I do not believe
that 	the Board's decision in Arcata modifies this 	rule. 	The
holding 	in Arcata 	is 	quite 	narrow and 	is 	applicable 	only to 	an
employer's modification of 	the hours of 	a vacant position. 	The
Board held that 	a decision to change 	hours 	in a vacant position
is 	not negotiable 	if 	taken 	for the purpose of 	changing the
nature, 	direction or level of service. 	By contrast, 	the Board
has 	never held that 	an employer can change 	the 	hours 	in an
occupied position, 	without negotiating, 	even if the purpose 	is to
change the nature, 	direction or level of 	service. 	Since the
present 	case does not 	involve changes 	in vacant positions, 	I
conclude 	that 	insofar as 	the 	disputed action constitutes 	an
increase 	in workload 	it 	remains 	a negotiable 	subject 	under Davis.
The 	fundamental 	question 	in this 	case 	is whether the 	State's
action at 	EDD amounted to a change 	in the past 	practice. 	While
it 	is clear that 	the State made a change 	in January of 	1997, 	not
all 	employer changes 	in working conditions 	constitute 	a 	change 	in
past practice. 	Unless an employer's 	action alters 	the 	status
quo, 	it does not 	constitute a unilateral 	change and failure 	to
negotiate 	in good 	faith.
8See Fire Fighters Union v. 	City of Vallejo 	(1974) 	12 	Cal.3d
608, 	619-620 	[116 Cal.Rptr. 	507]; 	Los Angeles County Employees
Association, 	Local 	660 v. 	County of Los Angeles 	(1973) 	33
Cal.App.3d 1, 	5 	[108 Cal.Rptr. 	625].
22

"[T]he 	'status quo' 	against which an employer's 	conduct 	is
evaluated must 	take 	into 	account 	the 	regular and consistent 	past
patterns 	of 	changes 	in the 	conditions 	of 	employment." 	(Pajaro
Valley Unified School District 	(1978) 	PERB Decision No. 	51.)9
Only changes 	that 	so deviate 	from the past practice 	as 	to change
its 	"quantity and kind" 	are 	inconsistent with the 	status 	quo and
a 	failure 	to negotiate 	in good 	faith. 	(Oakland Unified 	School
District 	(1983) 	PERB Decision No. 	367 	(Oakland).) 	In short, 	to
mark a change 	in the 	status 	quo 	an employer's 	action must
constitute a departure 	from how things were 	done 	in the past.
I note, 	initially, 	that 	it 	is absolutely clear that EDD had
no uniform practice 	of 	assigning 	12 	determination 	interviews 	per
day to each employment program representative. 	The 	evidence
completely fails 	to establish this 	allegation that 	is 	set 	out 	in
the 	complaint. 	What 	the evidence establishes 	is 	that 	the number
of 	Det 	interviews 	scheduled per 	day varied widely 	from employee
to employee, 	from office 	to office and from day to day. 	These
variations existed before January 2, 	1997, 	and they existed after
that date.
It 	is clear that on January 2, 	1997, 	EDD implemented a
general 	increase 	in 	the 	number of 	Det 	interviews 	assigned each
day to each interviewer. 	For most 	interviewers, 	the 	change
amounted to 	two additional 	interviews 	scheduled each day. 	The
9Thus, 	where 	an employer's 	action was 	consistent with the
past practice, 	no violation was 	found in a change 	that was not 	a
change 	in the 	status quo. 	(Oak Grove School District 	(1985) 	PERB
Decision No. 	503.)
23
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question here 	is whether this 	increase was 	inconsistent with
previous 	employer-directed changes 	in employee work 	schedules.
On this 	record, 	I 	cannot 	conclude 	that 	the action so deviated
from the past 	practice 	as 	to 	change 	its 	"quantity and kind."
(Oakland.)
EDD management 	had a history of 	changing the 	number of
interviews 	to 	be 	conducted by employment 	program 	representatives.
The 	record is 	replete with evidence 	of 	a wide variation 	in the
number of 	interviews 	which employees 	were 	scheduled to make 	in 	a
day. 	It 	also 	is 	clear that 	the number of 	scheduled interviews
was 	fluid. 	This number was 	changed, 	varying according to the
situation within 	individual 	offices 	and 	from office 	to office.
EDD witnesses 	testified 	to 	a practice 	of 	changing 	the 	number of
interviews. 	CSEA did not rebut this testimony. 	Indeed, 	the
joint 	exhibit 	entered by the parties 	showed variations 	in the
number of 	interviews 	to be 	common.
I 	conclude, 	therefore, 	that CSEA has 	failed to establish by
a preponderance 	of 	the evidence 	that 	the 	State's 	action 	in
January of 	1997 	constituted a 	change 	in the 	status 	quo.
Accordingly, 	the unfair practice 	charge 	and complaint 	must 	be
dismissed. 	This 	conclusion 	is 	dispositive of all 	the 	allegations
at 	issue 	and 	it 	is unnecessary to 	consider the waiver defense
asserted by the 	State.
PROPOSED 	ORDER
Based upon the 	foregoing 	findings 	of 	fact 	and conclusions 	of
law and the 	entire 	record in this matter, 	unfair practice 	charge
24

SA-CE-930-S, 	California State Employees Association v. 	State of
California 	(Employment 	Development 	Department) 	and companion 	PERB
complaint 	are 	hereby DISMISSED.
Pursuant 	to California Code of Regulations, 	title 	8,
section 	32305, 	this 	Proposed Decision and Order shall 	become
final 	unless 	a party files 	a 	statement 	of 	exceptions with the
Board 	itself 	at 	the 	headquarters 	office 	in Sacramento within
20 	days 	of 	service of 	this Decision. 	In accordance with PERB
regulations, 	the 	statement 	of 	exceptions 	should 	identify by page
citation or exhibit number the portions 	of 	the 	record, 	if 	any,
relied upon for such exceptions. 	(See Cal. 	Code Regs., 	tit. 	8,
sec. 	32300.) 	A document 	is 	considered 	"filed" 	when actually
received before the close of business 	(5 p.m.) 	on the 	last day
set 	for 	filing 	". 	. 	. o r when sent by telegraph or certified or
Express United States mail, 	postmarked not 	later than the 	last
day set for filing . 	. 	. 	." 	(See Cal. 	Code Regs., 	tit. 	8,
sec. 	32135; 	Code Civ. 	P r o c , 	sec. 	1013 shall apply.) 	Any
statement 	of 	exceptions 	and 	supporting brief must 	be 	served
concurrently with 	its 	filing upon each party to 	this proceeding.
Proof 	of 	service 	shall 	accompany each copy 	served on a party or
filed with the Board itself. 	(See Cal. 	Code Regs., 	tit. 	8, 	secs.
32300, 	32305 and 32140.)
Ronald E. 	Blubaugh
Administrative 	Law 	Judge
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