State of California (Water Resources Control Board) (PERB 1337S)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
PROFESSIONAL 	ENGINEERS 	IN
CALIFORNIA GOVERNMENT,
Charging 	Party,
v.
STATE 	OF 	CALIFORNIA 	(WATER
RESOURCES CONTROL BOARD),
Respondent.
Case No. 	SA-CE-1083-S
PERB Decision No. 	1337-S
July 16, 	1999
Appearance: 	State 	of 	California 	(Department 	of 	Personnel
Administration) 	by Paul M. 	Starkey, 	Labor Relations Counsel, 	for
State of California 	(Water Resources Control Board).
Before Caffrey, 	Chairman; 	Dyer and Amador, 	Members.
DECISION
DYER, 	Member: 	This 	case 	comes before the Public Employment
Relations 	Board 	(PERB or Board) 	on exceptions 	filed by the 	State
of California 	(Water Resources Control 	Board) 	(WRCB or State) 	to
a Board administrative 	law judge's 	(ALJ) 	proposed decision. 	In
his 	proposed decision, 	the ALJ held that 	the WRCB violated
section 3519(b) 	and 	(c) 	of the Ralph C. 	Dills Act 	(Dills Act)1
when 	it 	implemented 	a 	new 	internet/intranet 	policy without
1The Dills Act is codified at Government Code section 3512 et
seq. 	Section 3519 provides, 	in relevant 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.
(c) 	Refuse or fail to meet and confer in good faith with
a 	recognized 	employee 	organization.
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providing 	the 	Professional 	Engineers 	in 	California Government
(PECG) 	with notice or an opportunity to bargain.
The Board has 	reviewed the 	entire 	record 	in 	this 	case,
including 	the proposed decision, 	the hearing transcript 	and 	the
WRCB's 	exceptions.2 For the 	reasons 	that 	follow, 	the Board
concludes 	that 	the WRCB violated the Dills Act when 	it
unilaterally 	implemented 	a 	new 	internet/intranet 	usage 	policy
without 	providing 	PECG with notice 	or an 	opportunity 	to bargain
over that 	change.
PROCEDURAL 	HISTORY
PECG 	filed 	the 	underlying 	unfair practice 	charge 	on
February 5, 	1998. 	On April 24, 	1998, 	the Board's Office of
General 	Counsel 	issued a 	complaint based on the 	charge. 	The
complaint 	alleged 	that 	the 	State violated Dills Act 	section
3519(a), 	(b) 	and 	(c) 	when it implemented a new internet/intranet
usage 	policy without 	giving 	PECG notice 	or 	an 	opportunity 	to
bargain 	over 	the policy or 	the 	effects 	thereof.
The ALJ held a 	formal hearing on July 27, 	1998 	and issued a
proposed decision on October 22, 	1998. 	WRCB filed exceptions 	to
the proposed decision on November 16, 	1998.
FACTS
The 	respondent 	is 	the 	State 	employer within the meaning 	of
section 3513 (j) 	of the Dills Act. 	The WRCB is an appointing
authority of 	the State. 	PECG is a recognized employee
organization within the meaning of 	section 3513(b) 	and is 	the
2The WRCB's 	request 	for oral 	argument 	is denied.
2

exclusive 	representative of State bargaining unit 	9. 	The State
and 	PECG were parties 	to a memorandum of 	understanding 	that
expired by its terms on June 30, 	1995.
On July 24, 	1997, 	the WRCB issued a memo advising all
employees 	that 	it was 	"poised to provide 	internet 	e-mail 	and
World Wide Web access as 	a 	tool 	to be used by you 	to accomplish
this 	agency's missions 	and program goals." 	The memo 	further
advised 	that 	the 	State Department 	of 	Information Technology
(DOIT) 	had developed an 	internet usage policy which 	the WRCB
would follow until 	it promulgated its 	own policy. 	The WRCB did
not provide 	PECG with a 	copy of 	this memorandum, 	nor did it 	offer
to meet 	and 	confer with 	PECG regarding 	the 	internet 	policy.
In late July, 	PECG queried the WRCB's 	labor relations
officer 	regarding 	rumors 	of a new internet policy. 	The WRCB's
labor relations 	officer denied knowledge 	of 	any new policy.
Thereafter, 	on July 31, 	1997, 	PECG wrote to the WRCB, 	indicating
that 	it 	believed 	that 	the WRCB had unilaterally 	implemented a
policy regarding 	internet 	access. 	PECG demanded that 	the WRCB
rescind any 	such policy.
On August 	11, 	PECG obtained a copy of 	the July 24 memorandum
(apparently without 	the attached DOIT policy) 	and faxed it 	to the
WRCB's labor relations officer. 	On August 20, 	the WRCB responded
that DOIT's 	internet policy was 	consistent 	with the 	State's
policy regarding 	the misuse 	of 	State 	equipment 	and 	indicated 	that
it would not 	negotiate over the policy.
On October 8, 	1997, 	the WRCB informed PECG that 	it had
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completed an 	internet/intranet 	policy 	to 	supersede 	the 	DOIT
policy. 	The WRCB asserted 	that 	the policy did not 	constitute 	a
change 	in past practice, 	but was 	an extension of 	the 	long-
standing 	State policy prohibiting 	the misuse 	of 	State 	equipment.
On October 	15, 	PECG contacted WRCB management 	to 	complain about
its 	implementation of the new policy. 	On October 22, 	the WRCB
responded 	that 	it 	had 	reviewed 	PECG's 	complaints 	and 	intended 	to
proceed 	with 	implementation without 	bargaining.
The WRCB 	internet/intranet 	policy defines 	both acceptable
and unacceptable uses 	of 	the 	internet 	and 	the WRCB's 	internal
network. 	Unacceptable uses 	are 	those which 	interfere with 	the
rights of others, 	are illegal, 	socially improper, 	or those that
impair 	the 	efficiency of 	the 	computer 	system. 	The policy permits
incidental 	personal 	use by employees 	so 	long as 	that use does 	not
interfere with 	job performance 	or 	otherwise violate 	the 	terms 	of
policy. 	The policy also provides 	that:
When an 	instance 	of 	noncompliance 	is
suspected 	or discovered 	in a 	computing 	system
or network 	connected 	to 	the 	Organizations'
network, 	supervisors and managers 	shall
immediately take 	action 	to 	correct 	the
situation. 	Internal discipline, 	up to and
including dismissal, 	may be appropriate 	in
some 	cases 	of 	noncompliance with this policy.
Criminal 	or 	civil 	action may be 	initiated 	in
appropriate 	instances.
(PECG's Ex. 	1.)
There 	is 	no 	evidence 	of 	any State policy 	specifically
addressing 	the use 	of 	the 	internet prior to the DOIT policy.
However, 	the WRCB has 	a well-established 	incompatible activities
policy which prohibits 	employees 	from 	"[u]sing 	state 	time,
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facilities, 	equipment, 	or supplies 	for private gain or
advantage," 	and sets 	forth misuse 	of 	State equipment as 	a ground
for discipline.3
DISCUSSION
Timeliness
Dills Act 	section 	3514.5(a) 	precludes 	PERB 	from issuing a
complaint 	based 	on 	conduct 	that 	occurred more 	than 	six months
prior to the 	filing of 	the 	charge. 	The Board has held that 	this
six-month time period is 	jurisdictional. 	(California State
University. 	San Diego 	(1989) 	PERB Decision No. 	718-H.)
Accordingly, 	neither the parties nor the Board can waive 	the
issue of 	timeliness. 	Further, 	a defense based on timeliness need
not 	be pled affirmatively. 	It 	is 	the 	charging party's burden to
show timeliness 	as part 	of 	its prima facie 	case. 	(The Regents 	of
the University of California 	(1990) 	PERB Decision No. 	826-H
(Regents).)
The 	limitations period 	"begins 	to 	run on 	the date 	the
charging party has 	actual 	or 	constructive 	notice 	of 	the
respondent's 	clear intent 	to 	[engage 	in the prohibited conduct],
providing 	that 	nothing 	subsequent 	to 	that 	date 	evinces 	a wavering
of 	that 	intent." 	(Regents.) 	Notice 	of 	a proposed 	change must be
given to an official 	of 	an employee 	organization who has 	the
3Section 	19990 	of 	the 	California Government 	Code 	requires
each 	state 	agency 	to 	determine 	those activities 	which 	"are
inconsistent, 	incompatible 	or 	in conflict with their duties 	as
state 	officers 	or 	employees." 	The WRCB most 	recently 	revised 	its
incompatible 	activities policy 	in 1987.
55

authority to act 	on behalf 	of 	the 	organization, 	and the notice
must 	clearly 	inform the 	recipient 	of 	the proposed 	change.
(Victor Valley Union High School 	District 	(1986) 	PERB Decision
No. 	565; 	see also, 	State of California 	(Board of Equalization)
(1997) 	PERB Decision No. 	1235-S.)
PECG filed its 	charge on February 5, 	1998. 	Accordingly, 	the
charge 	would not 	be 	timely 	if 	PECG knew or 	reasonably 	should have
known of 	the alleged unilateral 	change 	on or before August 	5,
1997.
PECG 	first 	heard rumors 	that 	the WRCB had adopted a 	new
internet policy in late July. 	It 	immediately began an
investigation 	of 	those 	rumors 	by 	contacting 	the WRCB's 	labor
relations 	officer, 	who denied any knowledge 	of 	the policy.
Thereafter, 	PECG obtained a 	copy of 	the July 24 memorandum and
faxed 	it 	to WRCB's 	labor relations 	officer.
The 	earliest 	date 	on which 	the 	record 	establishes 	that 	PECG
had actually 	seen any portion of 	the WRCB's 	internet policy 	is
August 	11, 	when PECG faxed a partial 	copy of 	the policy to the
WRCB and requested an explanation. 	Based on the 	foregoing, 	we
conclude 	that 	PECG has 	filed 	its 	charge 	in a 	timely manner.
Unilateral 	Change
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
66

notice or an opportunity to bargain over the change; 	(3) 	the
change was 	not merely an 	isolated breach of 	the 	contract, 	but
amounted 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 concerned
a matter within the 	scope 	of 	representation. 	(State 	of
California 	(Department 	of 	Forestry and Fire 	Protection) 	(1993)
PERB Decision No. 	999-S 	(Forestry and Fire Protection); 	Grant
Joint Union High School District 	(1982) 	PERB Decision No. 	196.)
On appeal, 	the WRCB 	renews 	its argument 	that 	the new
internet/intranet 	policy 	is merely an expression 	of 	its 	existing
policy concerning 	incompatible activities. 	Accordingly, 	the WRCB
contends 	that 	its 	imposition 	of 	the 	internet/intranet 	policy did
not 	constitute a 	change 	in the 	terms 	or conditions 	of 	employment
and was 	not negotiable. 	We disagree.
It 	is 	axiomatic 	that an employer's unilateral 	change 	in a
matter within the 	scope of negotiations 	is, 	absent a valid
defense, 	a per se 	refusal 	to bargain 	in violation of 	the Dills
Act. 	(State of California 	(Department of Motor Vehicles) 	(1998)
PERB Decision No. 	1291-S at pp. 	3-4 	(Motor Vehicles); 	Forestry
and Fire Protection at pp. 	17-18; 	State of California 	(Department
of Transportation) 	(1983) 	PERB Decision No. 	361-S, 	proposed dec.
at pp. 	31-32.) 	As 	the ALJ found, 	the WRCB unilaterally imposed
the 	new 	internet/intranet 	policy without 	providing 	PECG with
notice or an opportunity to bargain over that policy. 	Further,
the 	creation or alteration of 	a 	statement 	of 	incompatible
77

activities 	is 	a 	matter 	within 	the 	scope 	of 	representation.
(Forestry 	and 	Fire 	Protection 	at 	pp. 	17-18 	[holding 	that
supersession 	language 	of 	Dills 	Act 	sec. 	3517.64 evidences 	a
Legislative 	intent 	that 	the 	subject 	matter 	of 	certain 	provisions
of 	the Government 	Code, 	including 	sec. 	19990, 	are within the
scope 	of 	bargaining].) 	Accordingly, 	insofar as 	the
internet/intranet 	policy 	constituted 	a 	departure 	from 	the 	terms
of 	the 	WRCB's 	incompatible 	activities 	policy, 	the 	imposition 	of
the 	internet/intranet 	policy 	violated 	Dills 	Act 	section 	3519(c).
The 	WRCB 	has 	had 	the 	same 	incompatible 	activities 	policy 	in
4Section 	3517.6 	provides, 	in 	relevant 	part:
(a) 	(1) 	In 	any 	case 	where 	the 	provisions 	of
Section 	70031 	of 	the 	Education 	Code, 	or
subdivision 	(i) 	of 	Section 	3513, 	or 	Section
14876, 	18714, 	19080.5, 	19100, 	19143, 	19261,
19818.16, 19819.1, 19820, 19822, 19824, 19826,
19827, 	19828, 	19829, 	19830, 	19831, 	19832,
19833, 	19834, 	19835, 	19836, 	19837, 	19838,
19839, 	19840, 	19841, 	19842, 	19843, 	19844,
19845, 	19846, 	19847, 	19848, 	19849, 	19849.1,
19849.4, 	19850.1, 	19850.2, 	19850.3, 	19850.4,
19850.5, 	19850.6, 	19851, 	19853, 	19854, 	19856,
19856.1, 	19858.1, 	19858.2, 	19859, 	19860,
19861, 	19862, 	19862.1, 	19863, 	19863.1, 	19864,
19866, 	19869, 	19870, 	19871, 	19871.1, 	19872,
19873, 	19874, 	19875, 	19876, 	19877, 	19877.1,
19878, 	19879, 	19880, 	19880.1, 	19881, 	19882,
19883, 	19884, 	19885, 	19887, 	19887.1, 	19887.2,
19888, 	19990, 	19991, 	19991.1, 	19991.2,
19991.3, 	19991.4, 	19991.5, 	19991.6, 	19991.7,
19992, 	19992.1, 	19992.2, 	19992.3, 	19992.4,
19993, 	19994.1, 	19994.2, 	19994.3, 	19994.4,
19995, 	19995.1, 	19995.2, 	19995.3, 	19996.1,
19996.2, 	19998, 	19998.1, 	20796, 	21600, 	21602,
21604, 	21605, 	22825, 	or 	22825.1 	are 	in
conflict 	with 	the 	provisions 	of 	a 	memorandum
of 	understanding, 	the 	memorandum 	of
understanding 	shall 	be 	controlling 	without
further 	legislative 	action.
8

place since at 	least 	1987. 	That policy prohibits, 	inter alia,
the use of 	"state time, 	facilities, 	equipment, 	or supplies for
the employee 	or officer's private gain or advantage, 	or the gain
or advantage 	of 	another person," 	and notes 	that 	the misuse 	of
state property 	is 	a 	subject 	of 	discipline. 	The 	internet/intranet
policy, 	on the other hand, 	prohibits all uses 	that 	interfere with
the rights of others, 	are illegal, 	socially improper, 	or impair
the 	efficiency 	of 	the 	computer 	system.
The WRCB 	contends 	that 	the quoted portion 	of 	its
incompatible 	activities 	policy 	subsumes 	all 	actions 	which
potentially violate 	the 	internet/intranet 	policy. 	We 	conclude,
however, 	that 	the 	internet/intranet policy actually expands 	the
definitions 	of 	incompatible uses 	of 	state 	facilities 	and misuse
of 	state property. 	For example, 	an employee may violate 	this
policy by sending, 	receiving, 	or retaining large volumes 	of
e-mail, 	or downloading information from the 	internet, 	either for
public 	or private purposes. 	These actions 	could 	certainly impair
the 	efficiency 	of 	the 	computer 	system in violation of 	the
internet/intranet 	policy. 	Unless 	the 	employee undertook 	these
activities 	for private gain, 	however, 	they would not have
violated 	the 	WRCB's 	existing 	policy 	concerning 	incompatible
activities. 	Accordingly, 	we 	find that 	the WRCB's
internet/intranet 	usage 	policy 	constitutes 	a negotiable 	departure
from its 	existing statement 	of 	incompatible activities. 	(Motor
Vehicles, 	at pp. 	3-4; 	Forestry and Fire Protection, 	at pp. 	17-
18.)
99

ORDER
Upon the findings of 	fact, 	conclusions of law, 	and the
entire 	record in this 	case, 	it 	is 	found that 	the State of
California 	(Water Resources 	Control 	Board) 	(WRCB) 	violated the
Ralph C. 	Dills Act 	(Dills Act), 	Government Code section 3519(b)
and 	(c), 	when 	it unilaterally established a new rule altering the
conduct 	which 	constitutes 	an 	incompatible 	activity 	or a misuse 	of
state property. 	By adopting 	the 	rule without 	first meeting and
conferring with 	the 	Professional 	Engineers 	in California
Government 	(PECG), 	the WRCB failed to meet and confer in good
faith in violation of section 3519 (c). 	Because this action had
the additional 	effect of 	interfering with the 	right 	of 	PECG to
represent 	its members, 	the 	failure 	to meet and confer in good
faith also violated section 3519(b).
The 	allegation of 	a violation of Dills Act 	section 3519(a)
by WRCB 	in adopting 	the 	rule 	is 	hereby DISMISSED.
Pursuant to section 3514.5(c) 	of the Government Code, 	it 	is
hereby ORDERED 	that WRCB 	and 	its 	representatives 	shall:
A. 	CEASE AND DESIST 	FROM:
1. 	Unilaterally establishing 	rules 	that 	expand or
alter the 	conduct, 	which constitutes an incompatible activity or
a misuse 	of 	state property;
2. 	By the 	same 	conduct, 	interfering with the 	right 	of
PECG to represent 	its members;
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE THE 	POLICIES 	OF THE DILLS ACT:
1. 	Rescind for Unit 	9 	employees working 	for the WRCB,
10

that 	portion of 	the 	internet/intranet 	policy that 	expands 	or
alters 	the 	conduct 	that 	constitutes 	an 	incompatible 	activity or a
misuse 	of 	State property.
2. 	If 	requested by PECG, 	offer to meet 	and confer in
good 	faith prior 	to 	reinstating any 	rule 	that 	expands 	or alters
the 	conduct 	that 	constitutes 	an 	incompatible activity or a misuse
of 	State property.
3. 	Within ten 	(10) 	days 	following 	the date 	this
decision 	is no longer subject 	to appeal, 	post at all work
locations 	of 	the WRCB where notices 	to members 	of Unit 	9
customarily are posted, 	copies 	of 	the Notice attached hereto as
an Appendix. 	The Notice must 	be 	signed by an authorized agent 	of
the 	State, 	indicating that 	the 	State will 	comply with the 	terms
of 	this 	Order. 	Such posting 	shall 	be maintained 	for a period of
thirty 	(30) 	consecutive workdays. 	Reasonable steps 	shall be
taken to 	ensure 	that 	the Notice 	is 	not 	reduced in size, 	altered,
defaced 	or 	covered with any 	other material.
4. 	Written notification of 	the actions 	taken to
comply with 	this 	Order shall 	be made 	to 	the 	Sacramento Regional
Director 	of 	the 	Public 	Employment 	Relations 	Board 	in accord with
the director's 	instructions.
Member Amador 	joined 	in 	this 	Decision.
Chairman Caffrey's 	concurrence begins 	on page 	12.
11

CAFFREY, 	Chairman, 	concurring: 	I concur in the finding that
the State 	of 	California 	(Water Resources 	Control 	Board) 	(WRCB or
State) 	violated section 3519(b) 	and 	(c) 	of the Ralph C. 	Dills Act
(Dills Act) 	when it unilaterally established a policy on
internet/intranet 	usage 	which 	expanded 	or altered 	the 	conduct
constituting an 	incompatible 	activity or a misuse 	of 	state
property.
As 	noted by the majority, 	section 3517.6 	of 	the Dills Act
lists 	numerous 	statutory provisions 	which may be 	superseded by
the 	terms 	of a memorandum of understanding. 	The 	Public
Employment 	Relations 	Board 	(PERB or Board) 	has 	held 	that 	this
section 	indicates 	the 	clear 	legislative 	intent 	that 	the 	subject
matters 	represented 	in these 	statutory provisions 	are within 	the
scope 	of 	representation. 	(State 	of 	California 	(Department 	of
Forestry and Fire Protection) 	(1993) 	PERB Decision No. 	999-S.)
Among 	the 	specific 	statutory provisions 	listed 	in Dills Act
section 3517.6 	is Government 	Code 	section 19990. 	That 	section
prohibits 	conflicting 	or 	incompatible 	activities 	by 	state
employees, 	including misuse of state time, 	facilities, 	equipment
or supplies. 	Section 19990 also directs 	that 	state appointing
powers, 	such as WRCB, 	shall determine the specific activities
which are 	conflicting 	or 	incompatible with the 	duties 	of 	their
employees. 	The 	incompatible activities policies 	adopted by 	state
appointing powers 	pursuant 	to 	this 	section are within 	the 	scope
of 	representation under Dills Act 	section 3517.6.
12

WRCB 	had maintained 	the 	same 	incompatible 	activities 	policy,
adopted pursuant 	to Government 	Code 	section 19990, 	since at 	least
1987. 	In October 1997, 	WRCB informed the 	Professional 	Engineers
in 	California 	Government 	that 	it 	had adopted an 	internet/intranet
policy 	- 	an 	incompatible activities policy specific 	to use 	of 	the
internet/intranet. 	The dispute 	in this 	case 	involves 	the
question 	of 	whether 	the 	internet/intranet 	policy 	represented 	a
change 	in 	the 	existing 	incompatible 	activities 	policy or
established past 	practice 	concerning misuse 	of 	State 	equipment.
If 	it 	did, 	under 	the 	standard outlined in Grant 	Joint Union High
School District 	(1982) 	PERB Decision No. 	196, 	the State violated
the Dills 	Act 	when 	it 	unilaterally 	implemented 	the 	new policy.
It 	is 	important 	to note 	that 	there was 	no 	internet/intranet
at 	the 	time 	that WRCB's 	general 	incompatible activities policy
was 	adopted prior to 	1987. 	The 	internet/intranet presents unique
issues 	relative to its use by employees. 	As a result, 	the policy
adopted by WRCB 	concerning 	internet/intranet 	usage 	contains
unique 	provisions 	which differ 	from WRCB's 	general 	incompatible
activities policy. 	In my view, 	the differences are 	significant
enough to 	constitute 	a 	change 	in 	the 	existing 	incompatible
activities policy 	- 	a negotiable 	change 	in a condition of
employment. 	Among those unique provisions 	are: 	a 	restriction on
any use which 	"inhibits 	the 	efficiency of 	the 	computer 	system";
the 	authorization of 	users 	to 	"download 	copyrighted material"
subject 	to 	certain restrictions; 	and a policy stating 	that 	the
employer 	"will 	not 	be 	responsible 	for any damages 	whatsoever
13

which 	employees 	may 	suffer arising 	from or 	related 	to 	their use
of 	any state agency electronic 	information resources, 	whether
such damages be 	incidental, 	consequential 	or otherwise. 	. . . "
Because 	the 	State 	refused 	to negotiate 	these unique provisions 	of
the 	internet/intranet policy, 	it unilaterally changed a
negotiable 	condition of 	employment 	in violation 	of 	section
3519(b) 	and 	(c) 	of the Dills Act.
I 	write 	separately 	to 	emphasize 	that 	WRCB's
internet/intranet policy, 	if 	otherwise not 	constituting a
negotiable 	change 	in policy, 	would not become negotiable merely
because 	it 	included a provision stating 	that 	"discipline, 	up 	to
and 	including dismissal, 	may be 	appropriate 	in some 	cases 	of
noncompliance with 	this 	policy."
As 	referenced above, 	Government 	Code 	section 	19990 	directs
state agencies 	to develop 	incompatible activities policies, 	such
as 	the 	internet/intranet policy which 	forms 	the basis 	of 	the
dispute 	in this 	case. 	Government 	Code 	section 	19572 	describes
causes 	for discipline of an employee, 	including 	"violation of 	the
prohibitions 	set 	forth in accordance with Section 	19990."
Therefore, 	violation of WRCB's 	incompatible activities policy,
including 	the 	specific 	internet/intranet 	policy, 	constitutes
cause 	for discipline under 	section 	19572 	regardless 	of 	whether 	or
not 	the policy indicates 	that 	fact. 	Accordingly, 	the mere
statement 	within an 	incompatible 	activities 	policy 	that 	its
violation may result 	in discipline does 	not 	in and of 	itself
activate 	the 	duty to negotiate.
14

Notwithstanding Government 	Code 	section 19572, 	a review of
PERB 	caselaw also 	reveals 	that 	an 	employer's mere 	indication
within a policy that 	its violation may result 	in discipline 	does
not make 	a non-negotiable policy negotiable. 	In San Bernardino
City Unified School 	District 	(1982) 	PERB Decision No. 	255
(San Bernardino), 	the Board stated that 	"rules of 	conduct which
subject 	employees 	to 	disciplinary action are 	subject 	to
negotiation both as 	to 	criteria 	for discipline 	and as 	to
procedure 	to be 	followed." 	But 	in Placer Hills Union School
District 	(1984) 	PERB Decision No. 	3 77 	(Placer Hills). 	the Board
refined 	its 	earlier 	ruling. 	The Board pointed out 	that 	the 	rules
of 	conduct 	at 	issue 	in San Bernardino were 	directly 	related 	to
the negotiable subject of work hours. 	In Placer Hills. 	the
disputed 	rule 	of 	conduct 	required 	employees 	to 	sign 	for 	receipt
of 	documents 	or be 	subject 	to disciplinary action. 	Noting 	that
the 	rule bore no logical 	relationship to wages, 	hours 	or other
terms 	and conditions 	of 	employment, 	the Board stated:
The 	fact 	that 	discipline may result 	if 	an
employee 	refuses 	to acknowledge 	receipt 	does
not 	elevate 	the 	rule 	itself 	to a disciplinary
matter with an impact 	on wages, 	hours 	or
other enumerated subjects. 	To adopt 	this
analysis 	would bootstrap 	all 	work 	rules 	into
negotiable 	items within scope.
In short, 	a 	rule of 	conduct 	concerning a non-negotiable 	subject
does 	not 	become 	negotiable 	simply because violation of 	the 	rule
may 	result 	in discipline.
Summarizing, 	Dills Act 	section 3517.6 	establishes 	that 	an
incompatible 	activities policy 	is 	a negotiable 	subject.
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Therefore, 	the 	incompatible activities policy pertaining
specifically 	to 	internet/intranet 	usage 	which WRCB 	adopted 	in
October 	1997 was 	negotiable 	if 	it 	changed 	the 	established policy
and practice 	embodied 	in 	the 	general 	incompatible 	activities
policy which had been 	in effect 	since 	at 	least 	1987. 	For 	the
reasons 	stated above, 	I 	conclude 	that 	the 	internet/intranet
policy represented such a negotiable 	change. 	It was 	the 	change
in the policy 	itself, 	rather 	than a 	statement 	that violation of
the policy could result 	in discipline, 	which activated the
State's 	obligation to negotiate. 	WRCB's 	failure 	to 	fulfill 	that
obligation 	constituted a violation of 	the Dills 	Act.
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APPENDIX
NOTICE 	TO 	EMPLOYEES
POSTED 	BY ORDER OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
An agency of 	the 	State of 	California
After a hearing in Unfair Practice Case No. 	SA-CE-1083-S,
Professional 	Engineers 	in California Government v. 	State 	of
California 	(Water Resources Control Board). 	in which all parties
had the 	right 	to participate, 	it has been found that 	the State 	of
California 	(Water Resources 	Control 	Board) 	(WRCB or State)
violated the Ralph C. 	Dills Act 	(Dills Act), 	Government Code
section 3519(c) 	and 	(b). 	The State violated the Dills Act when
it 	unilaterally 	established a 	new policy 	on 	internet/intranet
usage. 	By adopting 	the 	rule without 	first meeting and 	conferring
with the 	Professional 	Engineers 	in California Government 	(PECG),
WRCB 	failed to meet 	and confer 	in good 	faith. 	Because 	this
action had 	the 	additional 	effect 	of 	interfering with 	the 	right 	of
PECG to 	represent 	its members, 	the 	failure 	to meet and confer in
good 	faith also violated section 3519(b).
As a result 	of 	this 	conduct, 	we have been ordered to post
this Notice and we will:
A. 	CEASE AND DESIST 	FROM:
1. 	Unilaterally 	establishing 	rules 	that 	expand or
alter the 	conduct, 	which constitutes 	an 	incompatible 	activity or
a misuse 	of 	state property;
2. 	By the 	same 	conduct, 	interfering with the 	right 	of
PECG to represent 	its members;
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE THE 	POLICIES 	OF THE DILLS ACT:
1. 	Rescind for Unit 	9 	employees working 	for the WRCB,
that portion of 	the 	internet/intranet policy that 	expands 	or
alters 	the 	conduct 	that 	constitutes 	an 	incompatible 	activity 	or a
misuse 	of 	State property.

2. 	If 	requested by PECG, 	offer to meet and confer in
good 	faith prior 	to 	reinstating any 	rule 	that 	expands 	or alters
the 	conduct 	that 	constitutes 	an 	incompatible activity 	or a misuse
of 	state property.
Dated: 	STATE 	OF 	CALIFORNIA 	(WATER
RESOURCES 	CONTROL 	BOARD)
By:.
Authorized 	Agent
THIS 	IS AN OFFICIAL NOTICE. 	IT MUST REMAIN POSTED 	FOR AT LEAST
THIRTY 	(30) 	CONSECUTIVE WORKDAYS 	FROM THE DATE OF 	POSTING AND
MUST NOT BE REDUCED 	IN SIZE, 	DEFACED, 	ALTERED OR COVERED BY ANY
MATERIAL.
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