State of California (Department of Personnel Administration) (International Union of Operating Engineers) (PERB 1305S)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
INTERNATIONAL UNION OF OPERATING
ENGINEERS, AFL-CIO, 	LOCALS 3, 	12,
39 AND 501,
Charging 	Party,
v.
STATE OF CALIFORNIA 	(DEPARTMENT
OF PERSONNEL ADMINISTRATION),
Respondent.
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) 	Case No. 	SA-CE-1005-S
PERB Decision No. 	1305-S
December 	22, 	1998
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Appearances; 	Levy, 	Stern & Ford by Adam Stern, 	Attorney, 	for
International Union of Operating Engineers, 	AFL-CIO, 	Locals 3,
12, 	39 and 501; Marguerite D. 	Shea, 	Labor Relations Counsel, 	for
State of 	California 	(Department of 	Personnel Administration).
Before Caffrey, 	Chairman; 	Johnson, 	Dyer and Amador, 	Members.
DECISION
JOHNSON, 	Member: 	This 	case is before the Public Employment
Relations 	Board 	(PERB 	or Board) 	on exceptions 	filed by the 	State
of 	California 	(Department 	of 	Personnel Administration) 	(DPA or
State) 	to a PERB administrative law judge's 	(ALJ) 	proposed
decision. 	In the proposed decision, 	the ALJ found that 	the 	State
violated section 3519(a), 	(b) 	and 	(c) 	of the Ralph C. 	Dills Act
(Dills Act)1 when it 	refused to negotiate with the 	International
1The Dills Act 	is 	codified at 	Government 	Code 	section 	3512
et 	seq. 	Unless 	otherwise 	indicated, 	all 	statutory references
herein are to the Government Code. 	Section 3519 	states, 	in 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

Union of Operating Engineers, 	AFL-CIO, 	Locals 3, 	12, 	39 and 501
(IUOE) 	on the subject of 	the 	impacts 	of 	federal 	gun control
legislation on bargaining unit members, 	and 	insisted that
bargaining 	take place at 	the 	departmental 	level.
After reviewing the 	entire 	record, 	including 	the unfair
practice 	charge and complaint, 	the proposed decision, 	the hearing
transcript, 	the State's 	exceptions and IUOE's 	response, 	the Board
reverses 	the 	proposed decision and 	dismisses 	the 	unfair practice
charge 	and 	complaint 	in accordance with 	the 	following discussion.
BACKGROUND
IUOE 	is 	the 	recognized exclusive 	representative 	of 	employees
within State Bargaining Unit 	12, 	Craft and Maintenance, 	and State
Bargaining Unit 	13, 	Stationary Engineers. 	On or about
March 20, 	1997, 	DPA notified IUOE and other exclusive
representatives 	of 	the 	impacts 	on the Gun Control 	Act 	of 	1968
(Gun Act) 	of provisions 	included in the 	Federal 	Omnibus
Consolidated Appropriations Act 	of 	1997. 	Among other impacts,
the Gun Act 	was 	amended to make 	it unlawful 	for any person
convicted of 	a misdemeanor crime 	of 	domestic violence 	to 	ship,
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.
(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.
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transport, 	possess, 	or receive firearms or ammunition. 	DPA noted
that 	state 	agencies 	needed 	to 	take 	affirmative 	steps 	to determine
if 	any employees were subject 	to this 	restriction, 	and to take
appropriate 	remedial 	action. 	DPA also notified 	IUOE 	of 	its
intent 	"to delegate 	implementation 	of 	the 	new requirements 	to
each department." 	DPA decided to delegate 	this matter to
individual 	departments because 	it believed that 	the process 	of
reviewing 	the 	impact 	of 	the Gun Act 	amendments 	on 	specific
employees 	and work 	settings, 	and considering what 	actions
implementation of 	the amendments 	required, 	would be more
effectively 	and 	efficiently 	completed at 	the 	departmental 	level.
IUOE 	was 	advised 	to 	contact 	departmental 	employee 	relations
officers 	if 	it wished to discuss 	impacts 	of 	the Gun Act
amendments.
On March 28, 	1997, 	IUOE responded to DPA's March 20 	letter.
IUOE 	rejected DPA's 	invitation to 	contact 	departmental 	labor
relations 	officers, 	indicating that 	there 	should be a single,
statewide 	application of 	the Gun Act 	amendments 	as 	they affected
bargaining unit members. 	IUOE demanded 	to meet 	and confer with
DPA on the 	subject.
On April 22, 	1997, 	IUOE again wrote DPA, 	which had not
responded to 	the March 28 	letter, 	seeking 	information on
employees affected by the Gun Act amendments. 	On June 4, 	1997,
IUOE 	again wrote 	to DPA reiterating 	IUOE's 	concern about
conducting negotiations 	with 	individual 	departments 	on 	the
subject.
3
3

On June 	10, 	1997, 	DPA responded to 	IUOE reiterating that
negotiations 	over the 	impact 	of 	the Gun Act 	amendments were being
delegated 	to 	individual 	departments 	and would not 	be 	conducted 	on
a 	centralized, 	statewide basis.
On June 11, 	1997, 	the State Department of Parks and
Recreation 	(Parks 	and Recreation) 	wrote 	to 	IUOE 	inviting
discussions 	on 	the 	implementation 	of 	a proposed policy 	relating
to the Gun Act amendments. 	On June 23, 	1997, 	IUOE responded and
declined to participate 	in discussions, 	noting DPA's 	refusal 	to
bargain the 	issue 	on a statewide basis. 	A month later, 	Parks and
Recreation notified 	IUOE 	that 	there was 	no 	impact 	on Unit 	12
employees within that 	department 	as 	a 	result 	of 	the policy.
The Department 	of 	Fish and Game 	(Fish and Game) 	wrote 	to
IUOE on July 31, 	1997, 	announcing its 	implementation of 	the Gun
Act amendments, 	effective September 2. 	IUOE was 	invited to meet
and confer on the 	impacts 	of 	the policy. 	IUOE 	responded on
August 	4 	and asserted 	that 	Fish and Game was unilaterally
implementing 	a 	new policy affecting 	terms 	and 	conditions 	of
employment.
There 	is 	no 	specific 	evidence 	that 	bargaining unit members
represented by 	IUOE 	ship, 	transport, 	possess 	or receive 	firearms
or ammunition as part 	of 	their employment duties. 	There 	is 	no
evidence 	that 	any 	individual 	department 	failed 	or 	refused 	to
bargain with 	IUOE 	over the 	subject 	of 	the 	impact 	of 	the Gun Act
amendments.
On June 20, 	1997, 	IUOE 	filed the 	instant unfair practice
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charge 	alleging 	that 	DPA refused 	to negotiate 	over 	the 	subject 	of
the 	impact 	of 	the Gun Act 	amendments 	and 	instead advised 	IUOE
that 	it 	"would have 	to bargain 	individually with each department
within the 	State 	of 	California." 	IUOE alleged that 	this 	conduct
constituted a 	failure 	to bargain 	in good 	faith 	in violation 	of
the Dills Act. 	On July 23, 	1997, 	the PERB Office of the General
Counsel 	issued a 	complaint 	alleging 	that 	the 	State unlawfully
failed and 	refused 	to bargain 	in good 	faith when 	it 	advised 	IUOE
that 	it would not bargain the 	impact 	of 	the Gun Act 	amendments 	on
a 	statewide 	basis, 	but would 	instead delegate bargaining
responsibility 	to 	individual 	departments.
After conducting a hearing on November 18, 	1997, 	a PERB ALJ
issued a proposed decision on February 27, 	1998, 	finding that 	the
State violated Dills Act section 3519(a), 	(b) 	and 	(c) 	when it
refused 	to negotiate 	on a 	statewide basis 	and 	insisted 	that
bargaining 	take place at 	the departmental 	level.
POSITIONS 	OF THE 	PARTIES
Dills Act 	section 35172 requires 	the Governor or his
2Dills Act 	section 3517 	states, 	in pertinent part:
The Governor, 	or his 	representative as may be
properly designated by. law, 	shall meet and
confer in good faith regarding wages, 	hours,
and 	other 	terms 	and 	conditions 	of 	employment
with 	representatives 	of 	recognized employee
organizations.
"Meet 	and confer 	in good 	faith" 	means 	that
the Governor or 	such 	representatives 	as 	the
Governor may designate, 	and 	representatives
of 	recognized employee 	organizations, 	shall
have 	the mutual 	obligation personally 	to meet
and confer 	. 	. 	. 	and to endeavor to reach
UT
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designated representative 	to negotiate 	in good 	faith. 	IUOE
argues 	that DPA, 	as 	the Governor's designated representative, 	has
no 	authority 	to 	further delegate bargaining 	to 	individual
departments, 	and its 	insistence on doing so represents 	a refusal
to bargain 	in good 	faith. 	IUOE asserts 	that DPA's 	action
presents 	a 	clear and present 	danger 	to 	the bargaining process.
(Savanna School District 	(1982) 	PERB Decisions No. 	276
(Savanna).) 	According to 	IUOE, 	the danger results 	from the
potential 	need 	for 	IUOE 	to 	conduct 	separate 	negotiations 	with
approximately 	thirty 	individual 	departments.
DPA responds 	that 	in Government 	Code 	section 	19815.4(g) 	the
Director 	of 	DPA is 	expressly designated as 	the Governor's
representative under Dills Act 	section 3517. 	Further, 	Government
Code 	section 	19815.4(f) 	expressly authorizes 	the Director of DPA
to 	"delegate powers 	to any authorized 	representative."
Therefore, 	DPA's delegation to 	individual departments of
bargaining over the 	impacts 	of 	the Gun Act amendments 	is 	lawful.
DPA notes 	that 	the 	Board has 	expressly affirmed DPA's 	authority
to delegate bargaining to departments 	at 	its 	discretion 	(State 	of
California 	(Department of 	Personnel Administration) 	(1996) 	PERB
Decision No. 	1145-S 	(State of California 	(DPA)). 	Also, 	the Board
has 	recently held 	that 	a union has 	no authority 	to dictate 	the
setting 	in which negotiations must 	occur 	(State 	of 	California
(Board of Equalization) 	(1997) 	PERB Decision No. 	1235-S).
agreement 	on matters within the 	scope 	of
representation.
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DISCUSSION
In 	considering allegations 	that 	a party has 	failed 	to
negotiate 	in good 	faith, 	the Board generally reviews 	the 	totality
of 	the 	circumstances 	involved. 	However, 	certain acts have such
potential 	to 	frustrate negotiations 	that 	they are 	considered per
se violations 	of 	the duty to bargain 	in good faith. 	(Pajaro
Valley Unified School District 	(1978) 	PERB Decision No. 	51
(Parajo Valley) 	Examples 	of per se violations 	include an
outright 	refusal 	to negotiate 	(Sierra Joint 	Community College
District 	(1981) 	PERB Decision No. 	179); 	or employer unilateral
changes 	to 	terms 	and 	conditions 	of 	employment 	(California 	State
Employees' 	Assn. 	v. 	Public Employment Relations Bd. 	(1996) 	51
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Cal.App.4th 923, 	934-935 	[59 Cal.Rptr.2d 488]).
Dills Act 	section 3517 	states 	that 	"the Governor or such
representatives 	as 	the Governor may designate" 	has 	the 	obligation
to meet 	and 	confer 	in good 	faith. 	IUOE asserts 	that:
Nowhere 	is 	the duty to meet 	and confer
defined 	in 	such a manner 	that 	would allow 	the
DPA to 	re-delegate, 	absent 	authority 	from the
Governor, 	bargaining authority.
Consequently, 	IUOE argues 	that DPA's unauthorized 	insistence 	on
delegating negotiations 	over the 	impact 	of Gun Act 	amendments 	to
individual 	departments 	constitutes 	an outright 	refusal 	to
bargain.
IUOE's 	assertion is 	incorrect. 	In State of 	California
(DPA). 	while dismissing allegations of unlawful 	conduct relating
to DPA's 	requirement 	that 	individual 	departments 	obtain DPA
approval 	before negotiating with exclusive 	representatives, 	the
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Board 	stated:
Dills Act 	section 3513(j) 	defines 	the State
employer 	for purposes 	of bargaining as 	the
Governor or his 	designated 	representatives.
DPA has acted as 	the designee. 	As such, 	it
may delegate 	this 	authority 	to 	State 	agencies
or departments, 	at 	its discretion. 	There is
no 	evidence 	that 	such delegation 	is 	either a
subject 	within 	the 	scope 	of bargaining 	or
that 	this 	delegation has 	interfered with 	the
State's 	obligation 	to bargain 	in good 	faith.
Since DPA has 	the discretion to delegate 	the authority to bargain
to departments, 	the delegation of negotiations 	over the 	impact of
Gun Act 	amendments 	does 	not 	in and of 	itself 	constitute a 	refusal
to bargain.
However, 	our 	inquiry does not 	end here. 	A specific
delegation of 	bargaining may be unlawful 	if 	it 	is 	found to be
inconsistent with the 	obligation to bargain 	in good 	faith. 	In
considering 	an allegation 	that 	a 	specific 	delegation of
bargaining 	responsibility 	is unlawful, 	the Board must 	consider
the 	totality of 	the 	circumstances 	involved.
The 	Board reviews 	the 	totality of 	the 	circumstances 	to
determine whether 	there 	are 	sufficient 	objective 	indicia 	of 	a
subjective 	intention to participate 	in good 	faith 	in 	the
bargaining process and to reach agreement, 	or, 	conversely, 	of an
intent 	to 	frustrate 	or avoid the bargaining process. 	(Placentia
Fire Fighters v. 	City of 	Placentia 	(1976) 	57 Cal.App.3d 9, 	25
[129 Cal.Rptr. 	126] 	(Placentia); 	see also Pajaro Valley at
pp. 	4-5.) 	The parties' 	outward conduct 	is examined to determine
whether 	it 	indicates 	a serious 	attempt 	to 	resolve differences 	and
reach a common ground. 	(Placentia at p. 	25; 	see also, 	Stockton
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Unified School District 	(1980) 	PERB Decision No. 	143 	at p. 	21.)
In Savanna, 	the Board considered allegations 	that aspects 	of
the methodology 	or 	structure 	of 	bargaining utilized by 	a party
violated the duty to bargain 	in good faith. 	In that 	case, 	a
school 	employer 	alleged 	that 	an 	exclusive 	representative's
insistence that non-district employees, serve as members 	of the
negotiating 	team constituted bad 	faith bargaining. 	The 	Board
dismissed 	the 	charge 	and held 	that 	the 	charging party had 	the
burden of 	showing 	"substantial 	evidence 	of 	ulterior motive 	or bad
faith," 	by 	the 	exclusive 	representative 	such that 	the 	conduct
constituted a 	"clear and present 	danger 	to 	the bargaining
process." 	(Id. 	at pp. 	4-5, 	proposed dec.) 	The Board
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specifically held 	that 	the 	charging party must 	provide 	concrete
examples 	of 	disruptions 	to 	the bargaining process 	in order to
demonstrate 	that 	the 	respondent 	engaged 	in unlawful 	conduct.
(Id. 	at p. 	5.)
IUOE 	cites 	Savanna and argues 	that DPA's 	delegation of
bargaining 	in 	this 	case 	represents 	a 	clear and present 	danger 	to
the bargaining process. 	IUOE 	refers 	to 	the 	time and expense
involved 	in negotiating 	the 	impact 	of 	Gun Act 	amendments 	with
approximately 	thirty 	individual 	departments 	which 	employ
bargaining unit members. 	IUOE states:
. 	. 	. 	department wide bargaining on this
issue 	would severely 	restrain 	the Union due
to 	the 	costs 	and 	time 	associated with
bargaining with 	the multitude 	of 	departments
that 	employ Unit members.
The 	Board agrees 	that 	it 	is 	appropriate 	to apply the
99

standard adopted 	in 	Savanna 	in 	evaluating 	the 	allegations
presented in the 	case at bar. 	As 	a result, 	in order to prevail
in 	this 	case, 	IUOE must present 	evidence 	of ulterior motives by
DPA, 	or 	concrete examples 	of disruptions 	to 	the bargaining
process 	which demonstrate 	that DPA's 	delegation 	of 	bargaining 	to
individual 	departments presents 	a 	clear and present 	danger 	to
that process.
IUOE has 	failed to meet 	this 	standard. 	DPA asserts 	that 	its
reason 	for delegating bargaining 	over 	the Gun Act 	amendments 	was
to 	increase 	the 	efficiency and effectiveness 	of 	that 	bargaining.
IUOE has 	presented no evidence 	of 	an ulterior motive. 	IUOE
asserts 	that 	the 	delegation 	of 	bargaining 	to 	individual
departments 	has 	the 	effect 	of 	"requiring 	the Union to bargain
with potentially thirty some 	separate 	departments." 	However, 	the
mere 	"potential" 	of 	this 	bargaining does 	not demonstrate
disruption 	to 	the bargaining process. 	The 	record contains
evidence 	of 	IUOE 	contacts 	with 	two 	individual 	departments
concerning 	the 	impacts of 	the Gun Act 	amendments. 	In one
department, 	Parks and Recreation, 	apparently no 	IUOE members were
impacted by the amendments. 	In the other, 	Fish and Game, 	it 	is
unclear whether there was 	impact 	on IUOE members. 	Further, 	these
contacts were 	initiated by the departments, 	so it does not appear
that 	the 	delegation 	of bargaining 	to 	individual 	departments
prevented 	the 	bargaining process 	from going 	forward.
IUOE points 	out 	that 	the 	time 	and 	costs 	associated with
conducting 	negotiations 	with 	thirty different 	departments 	would
10

severely strain the Union's 	resources. 	As 	noted above, 	however,
IUOE 	has 	presented no evidence 	that 	its members 	in numerous
departments 	are 	involved in the 	shipment, 	transportation,
possession or receipt 	of 	firearms 	or ammunition, 	duties 	which the
Gun Act 	amendments addressed. 	It 	cannot be 	concluded, 	based on
the 	evidence presented, 	that 	negotiations by IUOE with numerous
departments would actually be 	required 	in this 	case. 	As 	a
result, 	IUOE's 	reference 	to the 	increased cost 	and time
associated with bargaining 	with 	numerous 	individual 	departments
is purely speculative.
IUOE 	has 	failed 	to 	demonstrate 	evidence 	of 	ulterior motive
by DPA or any 	concrete 	example 	of 	disruption which poses 	a 	clear
and present 	danger 	to the bargaining process. 	Therefore,
considering 	the 	totality of 	the 	circumstances, 	the Board cannot
conclude 	that 	DPA violated 	its 	obligation to negotiate 	in good
faith when 	it 	delegated bargaining 	over 	the 	impacts 	of 	Gun Act
amendments 	to 	individual 	departments.
ORDER
The 	unfair practice 	charge 	and 	complaint 	in Case
No. 	SA-CE-1005-S 	are hereby DISMISSED WITHOUT LEAVE TO AMEND.
Chairman 	Caffrey and Member Amador 	joined 	in 	this 	Decision.
Member Dyer's dissent begins 	on page 	12.
11

DYER, 	dissenting: 	I dissent. 	Section 3521 	of 	the Ralph C.
Dills Act 	(Dills Act) 	empowers 	the 	Public Employment Relations
Board 	(Board) 	to determine appropriate bargaining units 	for
employees of the State of California 	(State). 	In 1979, 	after
extensive hearings, 	the Board 	created a 	statewide unit 	of 	Craft
and Maintenance 	employees 	(Bargaining Unit 	12) 	and a 	statewide
unit 	of 	Stationary Engineers 	(Bargaining Unit 	13). 	(Unit
Determination 	for the 	State 	of 	California 	(1979) 	PERB Decision
No. 	110-S at pp. 	43-44.) 	In doing so, 	the Board specifically
rejected 	the 	possibility 	of 	creating 	department-wide 	or agency-
wide bargaining units, 	noting 	that 	such units would unnecessarily
fragment 	"employees 	who perform substantially 	identical 	functions
in state service." 	(Id. 	at p. 	6.) 	Today, 	the majority
effectively undermines 	the 	Board's 	unit 	determination by 	ceding
to 	the State 	employer, 	the authority to dictate whether
negotiations 	will 	occur on a unit-wide basis 	or whether an
exclusive 	representative must 	negotiate 	individually with 	every
department 	in the 	State.
For the reasons 	that 	follow, 	I 	conclude that 	the 	issue of
whether bargaining 	takes 	place 	on a unit-wide 	or department-by-
department 	basis 	is 	a negotiable 	ground 	rule and that 	the 	State
violated Dills Act section 3519(a), 	(b) 	and 	(c) 	when it refused
to meet 	and 	confer over the 	setting of 	impact 	negotiations.
FACTUAL 	SUMMARY
This 	case 	presents 	a 	relatively 	straightforward 	factual
scenario. 	The 	International Union of Operating Engineers,
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AFL-CIO, 	Locals 3, 	12, 	39 and 501 	(IUOE) 	is the exclusive
representative 	of 	employees 	in State 	Bargaining Units 	12 	and 13.
The 	State 	employs members 	of 	Bargaining Unit 	12 	in approximately
40 	departments 	and employs members 	of 	Bargaining Unit 	13 	in
approximately 25 	departments 	throughout 	the 	State.
In 1997, 	the United States 	Congress passed the 	federal
Omnibus 	Consolidated Appropriations Act 	of 	1997. 	Among other
things, 	this 	legislation amended the 	federal Gun Control Act 	of
1968 	(Gun Act), 	making it unlawful 	for any person convicted of a
"misdemeanor crime of domestic violence" 	to ship, 	transport,
possess, 	or receive 	firearms or ammunition.
On March 20, 	1997, 	the labor relations 	office 	for the State
of 	California 	(Department 	of 	Personnel Administration) 	(DPA)1
notified 	IUOE 	that 	Congress 	had amended the Gun Act. 	DPA
informed 	IUOE 	that 	the 	State 	intended 	to 	take unspecified actions
to 	ensure 	compliance with 	the 	amendment. 	Although DPA recognized
that 	these actions 	could 	impact matters 	within the 	scope 	of
bargaining, 	DPA indicated that 	it would not 	negotiate 	those
impacts 	on a unit-wide basis. 	Instead, 	DPA stated that 	IUOE
would have 	to 	contact 	each 	individual 	department 	to 	request
impact negotiations.
On March 28, 	1997, 	IUOE responded to DPA's March 20 	letter.
IUOE 	rejected DPA's 	offer 	of 	compartmentalized negotiations.
Noting the 	statewide 	implications 	of 	the Gun Act amendment, 	IUOE
The	'The Director 	of 	DPA serves 	as 	the Governor's 	representative
pursuant 	to the provisions 	of Dills Act 	section 3517. 	(Cal. 	Gov.
Code sec. 	19815.4.)
13

requested 	that DPA meet 	and 	confer over 	the 	unit-wide 	impacts 	of
the amendment.
DPA did not 	respond 	to 	IUOE's March 28 	letter.
On April 	22, 	1997, 	IUOE sent a second letter to DPA. 	IUOE
reiterated 	its 	demand 	for unit-wide bargaining 	and 	requested 	the
name, 	classification, 	department, 	and worksite location of each
employee affected by the Gun Act amendment, 	as well 	as 	the
State's 	rationale 	for applying 	the Gun Act 	to 	that 	employee.
DPA did not 	respond to 	IUOE's April 	22 	letter.
On June 4, 	1997, 	IUOE contacted DPA for the third time.
IUOE 	again voiced 	its 	objection 	to bargaining with 	individual
departments. 	IUOE 	questioned whether 	each department 	had 	the
authority 	to 	enter 	into 	a 	separate memorandum of 	understanding
controlling the Gun Act's 	impact 	on terms 	and 	conditions 	of
employment. 	(See Dills Act sec. 	3517.5.)
On June 10, 	1997, 	DPA responded to IUOE's June 4 letter.
DPA 	confirmed 	that 	it 	had delegated 	compliance with 	the 	Gun Act
amendment 	to 	each 	individual 	department. 	DPA affirmatively
stated 	that 	it 	would not 	bargain 	the matter 	on a 	centralized,
unit-wide basis.
On June 20, 	1997, 	IUOE filed the underlying unfair practice
charge 	alleging 	that 	the 	State 	had 	failed and 	refused to meet 	and
confer 	in good 	faith when 	it 	refused 	to bargain over 	the 	impact
of 	the Gun Act 	amendment 	on a unit-wide basis.
14

DISCUSSION
This 	case presents 	a 	simple question: 	Did the 	State
employer 	fail 	or 	refuse 	to meet 	and 	confer 	over a matter within
the 	scope 	of bargaining?
The majority answers 	this 	question 	in 	the 	negative,
concluding 	that 	the 	State merely 	empowered 	individual 	departments
to negotiate 	the effects 	of 	the Gun Act amendment. 	In reaching
this 	conclusion, 	the majority ignores 	the crux of 	this 	case:
whether, 	when making a change affecting matters within the 	scope
of 	bargaining, 	the 	State may unilaterally require an exclusive
representative 	to 	engage 	in 	serial 	negotiations 	with multiple
departments.
The 	Board has 	recently held 	that 	an 	exclusive 	representative
has 	no 	right 	to dictate 	the 	"setting" 	in which bargaining 	takes
place. 	(State of California 	(Board of Equalization) 	(1997) 	PERB
Decision No. 	1235-S at p. 	3.) 	Accordingly, 	an exclusive
representative may not 	require 	the 	State 	to 	negotiate 	an 	issue 	at
the main bargaining table. 	(Ibid; 	see also, 	Professional
Engineers 	in Cal. 	Government v. 	Department of Transportation
(1980) 	114 Cal.App.3d 93, 	99 	[170 Cal.Rptr. 	444] 	(holding that
employee 	organization may not 	compel 	an 	individual 	department 	to
meet 	and 	confer unless 	the 	department 	has 	been designated 	the
Governor's 	representative).) 	Likewise, 	an exclusive
representative may not dictate 	the 	schedule 	for negotiations, 	the
physical 	location of negotiations, 	or the number of bargaining
unit members 	given release 	time 	to negotiate. 	By the same 	token,
15

however, 	an employer has 	no authority to unilaterally dictate
these 	terms. 	These are 	the ground rules 	that underlie 	the
negotiations process. 	As 	such, 	they are within the scope of
bargaining 	and must 	be 	negotiated by 	the 	parties.
Ground 	rules 	are 	essentially an agreement 	covering 	the
procedural 	aspects 	of 	substantive bargaining. 	Bargaining over
ground rules 	is 	done 	in the 	same manner as 	negotiations 	over
substantive 	terms 	and conditions 	of 	employment. 	Refusing 	to
bargain 	over 	ground 	rules 	or 	reneging 	on 	established ground 	rules
may constitute a violation of 	the duty to bargain. 	(See, 	e.g.,
State 	of 	California 	(Department 	of 	Personnel Administration)
(1991) 	PERB Decision No. 	900-S at p. 	4.)
As noted above, 	the State notified IUOE of 	its 	intent 	to
comply with the Gun Act amendment 	on March 20, 	1997. 	The State
offered to negotiate 	the 	impacts 	of 	that 	compliance 	on a
department-by-department basis. 	On March 28, 	IUOE declined the
State's 	offer 	of 	department-by-department 	negotiations 	and
requested 	that 	the 	State meet 	and 	confer 	over 	the unit-wide
impacts 	of 	the State's action. 	The 	State did not 	respond. 	IUOE
reiterated its 	request 	to bargain on April 	22 	and June 4, 	1997.
On June 	10, 	the 	State 	specifically refused to bargain on a
unit-wide basis.
According 	to testimony at 	the hearing, 	the 	State wished to
delegate 	negotiations 	to 	the 	individual 	departments 	because 	the
Gun Act 	amendment 	potentially affected 	individual 	employees 	in a
number of work settings; 	because 	individual 	departments were 	in a
16

better position 	to determine 	how to 	deal 	with 	those 	employees;
and because 	DPA lacked 	the 	information 	to 	effectively negotiate.
IUOE wished 	to negotiate 	on a unit-wide basis 	because 	it 	believed
that 	the 	Gun Act 	amendment 	had 	statewide 	impacts 	that 	should have
a 	statewide 	interpretation; 	and because bargaining with multiple
departments 	would unnecessarily 	tax 	IUOE's 	limited 	resources.
As 	this 	case illustrates, 	parties may, 	for valid reasons,
disagree 	over whether a particular decision has 	unit-wide 	or
merely local 	impacts. 	That 	is precisely why the parties must
negotiate 	the 	issue 	of whether negotiations 	should 	take 	place 	on
a unit-wide 	or a 	department-by-department 	basis.
That 	is 	not 	to 	say 	that 	the 	State 	employer may not 	delegate
its authority to bargain. 	(See Dills Act sec. 	3517; 	State of
California 	(Department of Personnel Administration) 	(1996) 	PERB
Decision No. 	1145-S, 	warning letter at p. 	6.) 	However, 	the
authority 	to 	select 	one's 	negotiators 	does 	not 	include 	the power
to 	require 	an exclusive 	representative 	to 	engage 	in 	serial
negotiations 	over mandatory subjects 	of bargaining. 	By 	that
logic, 	the State 	could delegate 	its authority to negotiate wages,
requiring an 	exclusive 	representative 	to 	negotiate 	a 	separate
salary schedule with each 	individual 	State 	department.
In this 	case, 	the parties 	stipulated that 	the State 	refused
to 	consider 	IUOE's 	requests 	for unit-wide bargaining 	over 	the
impact 	of 	the Gun Act amendment. 	More 	than hard bargaining, 	the
State's 	actions 	constituted an 	outright 	refusal 	to bargain 	over
this issue.
17

Based on the 	foregoing, 	I 	conclude 	that neither the. employer
nor 	the 	exclusive 	representative may dictate whether negotiations
take place 	on a unit-wide 	or a department-by-department 	basis.
Instead, 	the parties must 	reach agreement 	on this 	issue prior to
beginning substantive negotiations. 	Accordingly, 	I 	conclude that
the State violated Dills Act section 3519(a), 	(b) 	and 	(c) 	when it
refused 	to meet 	and 	confer 	over 	this 	issue.
18