State of California (Department of Corrections) (PERB 1392S)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA STATE 	EMPLOYEES
ASSOCIATION, 	SEIU LOCAL 	1000,
Charging 	Party,
v.
STATE OF CALIFORNIA 	(DEPARTMENT OF
CORRECTIONS),
Respondent.
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) 	Case No. 	SA-CE-1111-S
PERB 	Decision No. 	1392-S
June 26, 	2000
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Appearances: 	California 	State 	Employees Association by Howard
Schwartz, 	Attorney, 	for California State Employees Association,
SEIU Local 	1000; 	State of 	California 	(Department 	of 	Personnel
Administration) 	by Paul M. 	Starkey, 	Labor Relations Counsel, 	for
State of 	California 	(Department of 	Corrections).
Before Dyer, 	Amador and Baker, 	Members.
DECISION
DYER, 	Member: 	This case comes before the Public Employment
Relations Board 	(PERB or Board) 	on exceptions by the 	State of
California 	(Department of 	Corrections) 	(CDC or State) 	to an
administrative 	law judge's 	(ALJ) 	proposed decision 	(attached).1
In this 	case, 	which concerns work at 	the 	Salinas Valley State
Prison, 	the 	California State Employees Association, 	SEIU Local
1This 	is 	one 	of 	three 	cases 	before 	the 	Board on exceptions
filed by 	the 	State 	to 	three 	proposed decisions 	by an ALJ.
Although 	the 	cases were 	not 	consolidated below, 	the parties
agreed to combine 	the 	records 	of 	the 	three proceedings, 	and also
to 	incorporate 	the 	record of 	an earlier case, 	State of 	California
(Department of Corrections) 	(1997) 	PERB Decision No. 	HO-U-659-S.
The 	record 	in HO-U-659-S 	involved a 	dispute 	at 	California 	State
Prison, 	Sacramento, 	which was 	factually similar to the disputes
at 	issue 	here. 	That 	record was 	incorporated primarily to 	assist
the ALJ 	in ascertaining 	the 	timeliness 	of 	the unfair practice
charges 	filed in both the 	instant 	case, 	and its 	two related
cases.

1000 	(CSEA) 	alleged 	that 	CDC 	transferred 	Supervising 	Cook 	I 	(SCI)
work 	out 	of 	Unit 	15 	to 	Correctional 	Officers 	(COs) 	in Unit 	6, 	in
violation of 	section 3 5 1 9 (a), 	(b) 	and 	(c) 	of 	the Ralph C. 	Dills
Act 	(Dills 	Act) .2 The 	unfair practice 	charge 	was 	filed on April
16, 	1998, 	followed by a 	PERB 	complaint 	on May 12, 	1998, 	an answer
on June 	9, 	1998, 	and a 	formal 	hearing on August 	31, 	September 	1,
and October 	5, 	1998. 	On May 21, 	1999, 	the ALJ 	issued a proposed
decision 	in 	which 	he 	found 	that 	CDC 	had 	violated 	the 	Dills 	Act.
After 	reviewing 	the 	entire 	record, 	including 	the 	unfair
practice 	charge, 	the 	proposed decision, 	the 	briefs 	of 	the
parties, 	CDC's 	exceptions,3 and CSEA's 	response, 	the 	Board
affirms 	the 	proposed 	decision, 	in 	accordance 	with 	the 	following
2 The 	Dills 	Act 	is 	codified 	at 	Government 	Code 	section 	3512,
et 	seq. 	Section 	3519 	states, 	in pertinent 	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
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.
3 CDC's 	request 	for 	oral 	argument 	is 	hereby 	denied.
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discussion.4
DISCUSSION
Transfer of Work
In the proposed decision, 	the ALJ noted that 	the 	transfer of
work out 	of 	one unit 	into another 	is negotiable, 	and that 	a
unilateral 	transfer of work violates 	the 	duty to bargain.
(Rialto Unified School District 	(1982) 	PERB Decision No. 	209.)
The ALJ 	thereafter 	found that 	CDC 	had 	"taken effective 	control 	of
the cooking process 	away from Unit 	15 	SCIs 	and given 	it 	to Unit 	6
COs."5
The 	ALJ noted 	that 	CDC 	had 	"relied 	heavily 	. . . 	on 	the
overlapping duties 	of 	the 	SCIs 	and COs 	to 	justify 	its 	staffing
decision." 	He 	found, 	however, 	that 	each affected SCI 	"went 	from
a 	full-time participant 	in meal 	preparation 	and 	serving 	to a 	20
percent participant, 	at 	best." 	The ALJ then found that 	a
"diminution of 	this magnitude evidences 	a 	change 	in the 	quantity
and kind of 	the 	duties of 	the 	respective 	employees." 	In
concluding that 	there 	had been a unilateral 	change, 	the ALJ cited
Oakland Unified School District 	(1983) 	PERB Decision No. 	367, 	a
case 	which 	involved 	subcontracting unit 	work.
We 	find that 	Eureka City School 	District 	(1985) 	PERB
4On page 	25 	of 	the proposed decision, 	the ALJ finds 	that 	the
SCIs' 	post orders are 	"illusory at best, 	and misrepresentations,
at 	worst." 	PERB 	finds 	that 	the 	categorization of 	the post 	orders
as 	"misrepresentations" 	is unnecessary, 	and such categorization
is 	not 	adopted as part 	of 	the Board's 	decision.
5In doing so, 	the ALJ rejected CDC's 	arguments 	that
satellite 	kitchen 	food preparation was 	"new work" 	and that 	the
SCIs were 	not 	"deprived of 	any particular work."
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Decision No. 	481 	(Eureka) 	is more 	instructive with regard to the
unilateral 	transfer of work question.6 In Eureka 	the 	Board
stated:
In our view, 	in order to prevail on a
unilateral 	transfer of work theory, 	the
charging party must 	establish, 	as 	a threshold
matter, 	that duties were, 	in fact,
transferred out of the unit; 	that 	is, 	that
unit 	employees 	ceased 	to perform work which
they had previously performed 	or 	that 	nonunit
employees 	began 	to perform duties 	previously
performed 	exclusively by unit 	employees.
However, 	where, 	as here, 	unit and nonunit
employees 	have 	traditionally 	had 	overlapping
duties, 	an employer does not violate 	its duty
to 	negotiate 	in good 	faith merely by
increasing 	the 	quantity of 	work which nonunit
employees 	perform 	and 	decreasing 	the 	quantity
of 	work which unit 	employees 	perform.
(Emphasis 	in the original; 	footnote
omitted.)7
The 	Board notes 	that 	the 	three major transfer of work areas
discussed by 	the 	ALJ 	in 	the 	proposed 	decision 	involved
supervision, 	training, 	and assignment of 	food preparation work.
Under Eureka, 	we 	find that 	CDC merely increased the 	quantity
of work which nonunit 	employees performed, 	and decreased the
quantity of work which unit 	employees performed, 	in only one 	of
these areas, 	i.e., 	supervision. 	Although inmates 	involved in
food preparation now receive 	less 	supervision 	from SCIs, 	and
6See 	Calexico Unified School 	District 	(1989) 	PERB Decision
No. 	754 	(Calexico); 	Beverly Hills Unified School District 	(1990)
PERB Decision No. 	789, 	p. 	17; 	Whisman Elementary School District
(1991) 	PERB Decision No. 	868, p. 	12.
7Although CDC 	cited Eureka 	in both 	its 	post-hearing brief
and in its 	exceptions, 	the ALJ did not 	discuss Eureka 	in the
proposed decisions, 	and CSEA did not 	discuss Eureka 	in 	its post-
hearing brief 	or 	in 	its 	response 	to 	the 	exceptions.
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relatively more 	supervision 	from COs, 	it 	cannot be 	said that 	SCIs
"ceased to perform" 	such work or that 	COs 	"began to perform" 	such
work.8
However, 	the 	evidence does 	show that 	COs began to perform
training 	in 	food preparation, 	which SCIs 	did exclusively 	in 	the
past. 	It 	also 	shows 	that 	SCIs 	ceased to assign 	food preparation
work, 	and COs began such work, 	despite the 	fact 	that 	SCIs had
done 	this 	exclusively in the past. 	Although the 	Board 	finds 	less
extensive 	law violations 	than 	those 	found by the ALJ, 	the
transfer 	of 	work which occurred here 	constitutes 	a violation
under Eureka.
REMEDY
Pursuant 	to section 3514.5(c) 	of 	the Dills Act, 	PERB has 	the
authority 	to 	order 	"an 	offending party 	. . . 	to 	take 	such
affirmative 	action 	. . . 	as 	will 	effectuate 	the 	policies 	of 	this
chapter." 	The ALJ proposed, 	in part, 	to order CDC to bargain
"the 	staffing patterns 	for SCIs" 	with CSEA. 	In the 	absence 	of
agreement, 	CDC would be ordered, 	in 12 0 days, 	to staff every
satellite 	kitchen with one 	SCI 	per 	shift.9 Neither of 	these 	two
remedies 	is 	entirely justified.
8We note 	that 	in Calexico, 	at 	footnote 	3, 	PERB did add that
"The Board has yet 	to deal with a 	situation where 	there 	is 	a
severe 	redistribution of 	overlapping duties 	from unit 	to nonunit
employees." 	(Emphasis added.) 	In light 	of 	our finding that
nonunit 	employees 	began 	to 	perform duties 	previously performed
exclusively by unit 	employees, 	it 	is 	again unnecessary for the
Board to 	address 	that 	question 	in 	the 	instant 	case.
9This 	12 0-day period was 	presumably 	in consideration of
evidence 	presented which 	showed 	the 	difficulty of 	obtaining 	SCIs
in rural areas.
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First, 	this case is not about 	"staffing patterns" 	per se,
but 	rather about 	the 	transfer of work. 	What 	CDC 	should have
bargained here 	is 	the 	transfer of work out 	of Unit 	15. 	However,
we 	recognize 	that 	there 	may be 	managerial 	decisions 	concerning
SCI 	staffing patterns 	that would not 	be negotiable, 	even though
their effects 	might 	be negotiable.
Second, 	although 	the 	staffing pattern proposed by the ALJ
would presumably remedy the 	transfer of work, 	we 	cannot 	say, 	on
the 	record before us, 	that 	it 	is 	the only remedy available.
There may be 	other elections which CDC can make, 	such as with
scheduling, 	or with the addition of other Unit 	15 	employees, 	that
would 	keep 	food preparation 	assignment 	and 	training work 	from
being transferred out 	of 	the 	unit. 	Such decisions 	are 	not
appropriately mandated by 	the 	Board.
ORDER
Based on the 	foregoing findings 	of 	fact, 	conclusions 	of 	law,
and the 	entire 	record in this 	case, 	we 	find that 	the 	State of
California 	(Department 	of 	Corrections) 	violated the 	Ralph C.
Dills Act 	(Dills Act), 	Government Code section 3519(a), 	(b) 	and
(c). 	Therefore, 	it is hereby ORDERED that the State, 	its
administrators 	and 	representatives 	shall:
A. 	CEASE AND DESIST 	FROM:
1. 	Unilaterally transferring 	food preparation
assignment 	and training work 	out 	of 	Unit 	15 	without 	providing
California State Employees Association, 	SEIU Local 	1000 	(CSEA)
with notice 	and 	the 	opportunity to 	negotiate 	over 	the 	changes 	and
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their effects 	on the 	terms 	and conditions 	of employment 	of
bargaining unit 	members.
2. 	Interfering with the 	right 	of 	CSEA to 	represent 	its
members by the 	same 	conduct 	specified in Al, 	above.
3. 	Interfering with the 	right 	of 	employees 	to be
represented by CSEA by the 	same 	conduct 	specified 	in Al 	and A2,
above.
B. 	TAKE THE 	FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE 	POLICIES 	OF THE DILLS ACT.
1. 	Immediately, 	upon request by CSEA, 	enter into
negotiations 	over these unilateral 	changes.
2. 	Within thirty 	(30) 	working days 	following the 	date
this 	decision is no 	longer 	subject 	to appeal, 	halt 	the unilateral
transfer 	of 	food preparation 	assignment 	and 	training work 	out 	of
Unit 15.
3. 	Within ten 	(10) 	working days 	following the date
this decision is no longer subject 	to appeal, 	post 	at 	all work
locations where 	notices 	are 	customarily placed 	for all 	employees,
copies 	of 	the 	notice 	attached hereto as 	an Appendix. 	This 	notice
must 	be 	signed by an authorized agent 	of 	the 	State, 	indicating
that 	it 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 insure 	that 	the
notice 	is not 	reduced in 	size, 	altered, 	defaced or covered by any
other material.
4. 	Written notification of 	the 	actions 	taken to 	comply
with this 	Order 	shall 	be made 	to 	the 	Sacramento Regional 	Director
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of 	the 	Public 	Employment 	Relations 	Board 	in accordance with the
director's 	instructions. 	Continue to report, 	in writing, 	to the
regional 	director 	thereafter as 	directed. 	All 	reports 	to 	the
regional 	director 	shall 	be 	concurrently served on CSEA.
Members Amador 	and Baker 	joined 	in 	this 	Decision.
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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-1111-S,
California State Employees Association, 	SEIU Local 	1000 v. 	State
of California 	(Department of Corrections), 	in which all parties
had the 	right 	to participate, 	it 	has been 	found that 	the 	State of
California 	(Department 	of 	Corrections) 	violated the 	Ralph C.
Dills Act 	(Dills Act), 	Government Code section 3519(a), 	(b) 	and
(c) .
As 	a result 	of 	this 	conduct, 	we 	have been ordered to post
this Notice and we will:
A. 	CEASE AND DESIST FROM:
1. 	Unilaterally transferring 	food preparation
assignment 	and training work out 	of Unit 	15 	without providing
California 	State Employees Association, 	SEIU Local 	1000 	(CSEA)
with notice 	and 	the 	opportunity to negotiate 	over 	the 	changes 	and
their 	effects 	on the 	terms 	and conditions 	of 	employment 	of
bargaining unit 	members.
2. 	Interfering with the 	right 	of 	CSEA to 	represent 	its
members by the 	same 	conduct 	specified in Al, 	above.
3. 	Interfering with the 	right 	of 	employees 	to be
represented by CSEA by the 	same 	conduct 	specified 	in Al 	and A2,
above.
B. 	TAKE THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE THE 	POLICIES OF THE DILLS ACT.
1. 	Immediately, 	upon request by CSEA, 	enter into
negotiations 	over these unilateral 	changes.
2. 	Within thirty 	(30) 	working days 	following the 	date
this decision 	is 	no 	longer subject 	to appeal, 	halt 	the unilateral
transfer 	of 	food preparation assignment 	and training work 	out 	of
Unit 15.
Dated: 	STATE 	OF 	CALIFORNIA
(DEPARTMENT 	OF 	CORRECTIONS)
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
OTHER 	MATERIAL.
I).
.

STATE 	OF 	CALIFORNIA
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA 	STATE 	EMPLOYEES
ASSOCIATION, 	SEIU LOCAL 	1000,
Charging 	Party,
v.
STATE 	OF 	CALIFORNIA 	(DEPARTMENT
OF 	CORRECTIONS),
Respondent.
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Unfair 	Practice
Case No. 	SA-CE-1111-S
PROPOSED 	DECISION
(5/21/99)
)
Appearances: 	Howard Schwartz, 	Attorney, 	for California State
Employees Association, 	SEIU Local 	1000; 	Paul M. 	Starkey, 	Labor
Relations 	Counsel, 	for State of 	California 	(Department 	of
Corrections).
Before Allen R. 	Link, 	Administrative Law Judge.
PROCEDURAL 	HISTORY
On April 	16, 	1998, 	the California State Employees
Association, 	SEIU Local 	1000 	(CSEA), 	filed an unfair practice
charge 	with 	the 	Public 	Employment 	Relations 	Board 	(PERB 	or Board)
against 	the 	State 	of 	California 	(Department 	of 	Corrections)
(CDC). 	The 	charge 	alleged violations of 	the Ralph C. 	Dills Act
(Dills Act).'
On May 12, 	1998, 	the Office of the General 	Counsel 	of 	PERB,
after an investigation, 	issued a complaint 	against 	CDC, 	alleging
1The Dills Act 	is 	codified 	in the 	Government 	Code
(commencing with section 3512). 	All 	section references, 	unless
otherwise noted, 	are to the Government 	Code.

violations 	of 	subdivisions 	(a), 	(b) 	and 	(c) 	of 	section 3519.2 On
June 	9, 	1998, 	the 	respondent 	answered the 	complaint, 	denying all
material 	allegations 	and 	asserting 	affirmative 	defenses.
A 	formal 	hearing 	was 	held 	before 	the 	undersigned 	on
August 	31, 	September 	1 	and October 	5, 	1998.
The 	circumstances 	involved 	in 	this 	case 	occurred 	at 	Salinas
Valley 	State 	Prison 	(Salinas 	Valley) 	in 	Soledad, 	California.
Two 	other 	cases 	concerning 	the 	same 	issue 	are 	SA-CE-1032-S,
at 	the 	High Desert 	State 	Prison 	in 	Susanville 	(High Desert) 	and
SA-CE-1101-S, 	at 	the 	California 	Substance Abuse 	Treatment 	Center
in 	Corcoran 	(Corcoran 	I I ) . 	The 	parties 	agreed 	to 	combine 	the
transcripts 	and 	exhibits 	of 	all 	of 	these 	cases 	to 	create 	a 	record
upon 	which 	all 	three 	decisions 	will 	be 	based.
In addition, 	an earlier 	case, 	SA-CE-835-S, 	which concerned
the 	same 	issue 	at 	California 	State 	Prison, 	Sacramento 	(CSP
Sacramento) 	was 	incorporated 	into 	this 	combined 	record. 	A
2 S u b d i v i s i o n s (a), 	(b) 	and 	(c) 	of 	section 3519, 	in pertinent
part, 	state:
It 	shall 	be 	unlawful 	for 	the 	state 	to 	do 	any
of 	the 	following:
(a) 	Impose 	or 	threaten 	to 	impose 	reprisals
on 	employee, 	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.
(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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decision 	in that 	case, 	by PERB Administrative 	Law Judge 	Fred
D'Orazio, 	was 	issued on June 27, 	1997, 	and became 	final 	on
July 28, 	1997.
A motion by 	charging 	party was 	granted 	to 	amend 	the
complaint by substituting new paragraphs 	3, 	4 	and 5 	for those 	in
the 	complaint. 	Respondent 	had no objection on the 	condition that
its 	answer was 	deemed to 	cover the 	new paragraphs. 	These 	new
paragraphs 	are as 	follows:
3. 	Respondent 	operates 	the 	Salinas Valley
State 	Prison 	- 	Soledad, 	and within that
facility assigns 	Correctional 	Officers 	to
satellite 	kitchens 	to 	supervise 	inmate 	crews
in the preparation of, 	cooking and serving of
food to 	the 	inmate population.
4. 	The 	duties 	of 	supervising 	inmate 	crews
in the preparation of, 	cooking and serving of
food to 	an 	inmate population 	are 	reserved 	to
the 	classification of 	Supervising 	Cook.
5. 	Respondent 	has 	assigned the 	duties
described 	in paragraphs 	3 	and 4 	above 	to
correctional 	officers 	without 	notice 	to
charging 	party 	and opportunity 	to 	bargain,
and without 	approval 	of 	the 	PERB or 	resort 	to
appropriate 	unit 	modification procedures.
At 	conclusion of 	the hearing, 	transcripts were prepared,
briefs 	were 	filed 	and 	the 	case was 	submitted 	for proposed
decision on May 12, 	1999.
INTRODUCTION
CSEA complains 	of 	CDC's 	decision to 	transfer Unit 	15 	(cooks)
work at 	three prisons 	to Unit 	6 	(correctional officers) 	(COs)
33

employees.3 CDC did this, 	CSEA asserts, 	when it 	failed to assign
one 	Supervising Cook I 	(SCI) 	to each of 	its 	satellite kitchens.
Instead, 	CDC directed SCIs 	to oversee 	the 	food preparation
process 	at 	four geographically separate 	satellite 	kitchens, 	and
left 	the minute-by-minute 	supervision of 	the process 	to COs.
The 	respondent 	insists 	that 	the 	charge 	should be 	dismissed
because 	(1) 	it 	is untimely, 	(2) 	there was no transfer of
bargaining unit work, 	and 	(3) 	the union waived its 	right 	to
object.
FINDINGS 	OF 	FACT
Jurisdiction
The 	parties 	stipulated to 	the 	charging party being 	a
recognized 	employee 	organization 	and 	the 	respondent 	being 	the
state 	employer within the meaning of 	the 	Dills Act.
Background
From July 1, 	1992 	through June 30, 	1995, 	CSEA and CDC were
parties 	to 	a memorandum of 	understanding 	(MOU) 	which 	called 	for
binding 	arbitration of 	disputes 	which arose 	during 	its 	term.
3Satellite 	kitchens 	were 	activated at 	High Desert 	on May 22,
1997; 	at 	Salinas Valley in July, 	August 	or September of 	1997; 	and
at 	Corcoran 	II 	in late 	February or early March 	1998.
4

SA-CE-835-S4
On page 	24 	of 	his proposed decision Judge 	D'Orazio 	concluded
the 	charge was 	time-barred by section 	3514.5(a) (1),5 stating:
In sum, 	the record evidence 	cannot 	reasonably
be 	construed in a manner 	that 	starts 	the
limitations period anew with Mr. 	Losik's[6]
actions 	in 	1994 	or brings 	CDC's 	action within
the 	statute 	of 	limitations 	under a 	continuing
violation theory. 	The 	fact 	that Mr. 	Losik
rediscovered 	the 	staffing 	and work 	assignment
practice 	approximately 	seven years 	after
. 	. 	. 	Hall, 	and CDC agreed to meet in an
attempt 	to resolve 	the dispute, 	does not
defeat 	CDC's 	statute 	of 	limitations 	defense.
CSEA's 	Knowledge 	of 	Salinas 	Valley's 	SCI 	Staffing 	Policies
1. 	In 	the High Desert 	Proposed Decision various 	facts 	were
set 	forth 	regarding 	CSEA's 	knowledge 	of 	that 	prison's 	satellite
kitchens' 	activation. 	There was nothing 	in the 	chronology of
4A 	simultaneously 	issued proposed 	decision 	in 	SA-CE-1032-S
(High Desert 	Proposed Decision) 	regarding a 	similar 	issue 	at 	High
Desert, 	describes 	CSEA's 	contact with CDC's 	SCI 	staffing actions
on a statewide basis, 	in greater detail.
The 	record in SA-CE-835-S, 	consisting of 	the 	transcript 	and
exhibits, 	was 	retrieved 	from PERB's 	archives 	and was 	available
during the 	case's 	deliberations.
5Section 3514.5(a)(1) 	is as follows:
Any . 	. 	. employee organization. 	. 	. 	shall have
the 	right 	to 	file 	an unfair practice 	charge,
except 	that 	the 	board 	shall 	not 	do 	. . . 	the
following: 	(1) 	issue a complaint 	in respect of
any 	charge 	based upon 	an 	alleged unfair practice
occurring more 	than 	six months 	prior 	to 	the 	filing
of 	the 	c h a r g e . . . .
6Bob 	Losik 	(Losik) 	was 	the 	CSEA senior 	labor 	relations
representative 	assigned to Unit 	15 	until 	July 1997. 	He was
directly 	involved with many of 	the 	events 	leading 	up 	to 	the
activation of 	High Desert's 	satellite 	kitchens.
55

that 	case 	that 	would 	suggest 	CSEA knew of 	Salinas 	Valley's
satellite 	kitchen 	staffing plans 	during 	such 	activation.
2. 	Joan Bryant 	(Bryant), 	CSEA manager of bargaining
services, 	said that 	prior to the 	CSP 	Sacramento arbitration,7 she
had heard of 	the 	SCI 	staffing 	issue, 	but 	did not 	realize 	it 	had
any statewide 	impact. 	Bryant 	was 	aware 	Losik was 	looking at
other prisons 	throughout 	the 	state, 	but 	did not 	know when 	she
became 	aware 	of 	this 	information. 	In late 	summer 	1997 	or at 	some
unspecified time 	thereafter, 	Bryant 	was 	aware 	that 	Iona Hughes
(Hughes),8 in her new assignment, 	had some 	"open issues" 	with
regard to SCI 	staffing, 	but 	she 	did not 	recall 	what 	those 	issues
were. 	She 	admitted that 	while Hughes 	had this 	assignment 	she
became 	aware 	that 	these 	SCI 	staffing 	issues were 	occurring 	at
other 	institutions. 	Bryant was 	never made 	aware 	of 	the 	SCI
staffing pattern at 	Pelican Bay, 	which does not 	staff 	its 	kitchen
with 	full-time 	SCIs.
3. 	Norman Stone 	(Stone), 	chair of Unit 	15, 	first 	learned
of 	the CSP 	Sacramento SCI 	staffing pattern in 	1993 	or 	1994. 	He
had 	no 	information 	regarding 	Pelican Bay prison.
4. 	Stone 	and Hughes went 	on a 	cook-safety tour of 	Salinas
Valley on December 2, 	1997. 	It was on this 	tour that 	Stone 	first
learned 	that 	Salinas 	Valley was 	not 	staffing 	each of 	its
satellite kitchens with a 	SCI. 	Once Hughes 	and Stone 	learned of
7This 	arbitration resulted 	in a decision on April 	9, 	1996.
8Hughes, 	a CSEA senior labor relations representative,
followed Losik as 	CSEA manager of bargaining unit No. 	15. 	This
assignment ran from late summer, 	1997 	to May 29, 	1998.
66

Salinas Valley's 	SCI 	staffing pattern, 	they pursued this 	issue.
5. 	In the CSP Sacramento case, 	Bill Haythorne 	(Haythorne),
its 	food 	service manager, 	testified that 	immediately prior to his
testimony on March 	14, 	1997, 	he 	"called around" 	and learned that
three 	other prisons 	did not 	staff 	their 	kitchens 	with 	full-time
SCIs. 	Pelican Bay was one of 	those other prisons. 	High Desert
and Salinas Valley were 	the 	other 	two.
CDC 	cites 	this 	testimony to 	support 	its 	contention that
CSEA, 	with a minimum level 	of 	diligence, 	should have known of 	the
Pelican Bay staffing pattern. 	It 	believes 	that 	CSEA, 	through 	its
state-wide 	field 	representatives 	and 	steward 	system, 	should have
learned that 	the 	SCI 	staffing 	ratios were 	less 	than 	1:1 	at
prisons 	in addition to CSP 	Sacramento.
Haythorne's March 1997 	testimony is 	in direct 	conflict 	with
the 	fact 	that 	(1) 	High Desert 	did not 	activate 	its 	satellite
kitchens until May 22, 	1997 	and 	(2) 	Salinas Valley did not
activate 	its 	satellite kitchens until 	July, 	August 	or 	September
1997.
Haythorne's 	testimony may have 	been 	correct 	to 	the 	extent
that 	on March 14, 	1997, 	High Desert 	and Salinas Valley were not
staffing 	their satellite 	areas with SCIs. 	However, 	that was
before 	the 	satellite kitchens were activated, 	and at 	that 	time
those 	areas were merely dining halls. 	As 	there were 	no kitchens
in those 	areas, 	there would have been no reason to 	staff 	them
with SCIs. 	Therefore, 	Haythorne's 	testimony does not 	lend
7
7

support 	to 	CDC's 	contentions 	regarding CSEA's 	knowledge 	at 	that
time.
6. 	CDC Lieutenant 	Patrick Cowan 	(Cowan), 	is 	a headquarters
representative 	who 	was 	assigned to 	evaluate 	the 	cooking process
that 	created 	the 	need for 	satellite 	kitchens. 	He 	testified 	that
Pelican Bay had a 	staffing 	ratio 	of 	1:4 	in June 	1996, 	when he
last visited 	it. 	Sometime 	between then and when he 	testified 	in
June 	1998, 	CDC was required, 	due to a court decision, 	to realign
their 	staffing 	to 	either 	1:2 	or 	1:3.
7. 	There was no evidence proffered that 	CDC, 	when
presenting 	its 	case 	in SA-CE-835-S, 	stated that 	it was going to
continue 	to 	staff 	satellite 	kitchens 	with 	less 	than a 	1:1 	ratio.
8. 	CSEA received no notice 	from CDC of 	any kind that 	it
was 	about 	to activate 	its 	Salinas Valley satellite 	kitchens, 	much
less 	notice 	it 	was 	adopting a 	staffing pattern of 	less 	than one
SCI 	per kitchen per 	shift.
9. 	Mike R. 	Martinez 	(Martinez), 	has been CSEA's labor
relations 	representative 	for the 	Soledad area, 	which 	includes
Salinas Valley, 	since 	it 	opened in May 1996. 	When Hughes and
Stone 	toured 	Salinas 	Valley he 	was 	not 	available 	to 	join 	them.
He 	has 	had two 	recent 	major 	surgical 	operations 	and was 	off 	work
from November 	1996 	to March 	1997 	and 	again 	from May 	1998 	to 	mid-
June 	1998. 	In answer to 	specific 	questions 	from respondent's
counsel, 	he 	said that 	(1) 	prior to June 	1997 he had 	(a) 	not
toured the prison, 	(b) 	had no meetings with SCIs, 	either as
individuals or as 	a group, 	and 	(2) 	after June 	1997 	he had no
8

meetings 	or phone 	calls 	regarding 	SCI 	staffing 	at 	Salinas Valley.
In early 1998 	he 	attended a meeting with Hughes, 	Stone 	and
Salinas Valley's 	employee relations 	officer, 	Lieutenant Vertis
Elmore 	(Elmore) 	regarding safety issues. 	He does not 	remember if
the 	staffing 	issue was 	discussed at 	that 	meeting.
10. 	There was 	a 	second tour of 	Salinas Valley in January or
February 	1998 	by Hughes, 	Stone 	and Elmore. 	In addition to the
tour the parties 	had a meeting. 	The 	issue 	of 	SCI 	staffing was
not 	brought 	up 	at 	that 	meeting.
11. 	Elmore 	insists 	that 	he 	first 	became 	aware 	of 	the 	SCI
staffing 	issue 	when he 	received a 	copy of 	the 	unfair practice
charge 	in this 	case, 	shortly after it was 	filed on April 	16,
1998.
12. 	Karl J. 	Kramer 	(Kramer), 	Food Service Manager at
Salinas Valley since December 1, 	1995, 	remembered talking to
Hughes 	and Stone when they came 	through his 	kitchen. 	He 	does 	not
remember the exact date, 	but believes 	it was 	"a few months"
before his 	testimony on August 	31, 	1998. 	He remembers discussing
safety issues, 	but 	is 	"not 	sure we discussed staff."
He 	believes 	his 	satellite 	kitchens 	were 	activated 	in 	"July
or August, 	perhaps 	into September" 	of 	1997.
Satellite 	Kitchen 	Retherming 	Policy 	Decision
Lieutenant 	Cowan works 	in 	the 	Program Support 	Unit 	in the
Institutions Division at 	CDC headquarters. 	His 	unit was 	in
99

charge 	of 	reviewing 	and 	developing 	staffing 	criteria 	for
level 	IV9 prisons with regard to 	food 	services. 	When CDC 	first
went 	to 	the 	cook-chill process,10 Pelican Bay and CSP 	Sacramento,
and later, 	High Desert had a 	central 	retherming area. 	This was
an area, 	separate from, 	but adjacent to, 	the main kitchen. 	It
was 	used 	to 	retherm or 	reheat 	the 	food 	immediately prior 	to
trucking 	it 	to 	the 	satellite 	dining 	rooms 	for 	immediate
consumption. 	At 	that 	time 	the 	satellites were merely dining
halls or eating areas, 	with no cooking equipment.
High Desert 	and 	CSP 	Sacramento were 	having problems 	under
this 	system with serving 	food at 	proper 	temperatures. 	Cowan's
unit 	recommended 	that 	the 	retherm operations 	be 	moved 	from the
central 	area 	into the 	satellite 	areas. 	Due 	to 	this
recommendation, 	the 	retherm units were placed 	in 	Salinas 	Valley's
satellite areas, 	as well. 	His unit made no recommendation
regarding Corcoran 	II, 	but 	he believes 	that 	prison was 	originally
expected 	to 	receive 	a 	centralized retherm system. 	However,
because 	of 	CDC's 	experiences 	at 	CSP 	Sacramento 	and High Desert,
these 	plans 	were 	modified and 	retherm ovens 	were 	placed 	in 	the
satellite areas.
9All 	inmates 	are 	given a 	security rating 	from level 	I 	to 	IV,
with 	IV being 	the 	most 	serious 	or potentially dangerous.
10The 	cook-chill 	process 	initially prepares 	meals 	in a main
prison kitchen. 	The 	prepared 	food 	is 	quickly 	chilled 	and 	stored
until needed. 	Eventually, 	it 	is 	sent 	to a second location where
it 	is 	rethermed 	(reheated) 	and served to the 	inmates. 	This
process 	is 	a 	relatively recent 	innovation at 	CDC. 	Prior to 	its
introduction, 	food was prepared and served to all 	inmates 	in a
central 	dining 	area.
10

With the 	installation of retherm ovens, 	as well 	as grilles,
regular ovens 	and other 	cooking 	equipment, 	these 	satellite 	areas
became 	actual 	kitchens. 	Once 	this 	activation was 	effected,
Cowan's 	unit 	decided 	each 	satellite 	kitchen 	should be 	directly
controlled by an on-site 	CO, 	with one 	SCI 	assigned 	to 	every 	four
kitchens, 	a 1:4 ratio, 	to oversee them.
Physical 	Plant 	and Design of 	Satellite 	Kitchens
High Desert, 	Salinas Valley and Corcoran 	II 	are 	among
several 	recently-built 	prisons 	that 	have 	independent 	housing
units, 	each containing their own satellite kitchens. 	The
physical 	plan and design of 	the 	three prisons 	is 	identical.
Therefore, 	the 	size 	of 	the 	satellite kitchens 	and the 	distance
from each other 	is 	also 	identical. 	Each yard has 	four 	satellite
kitchens.
Each 	set 	of 	two 	satellite 	kitchens 	is 	approximately 	100
yards 	away from each other. 	The 	other 	set 	of 	two 	kitchens 	is
approximately one-quarter 	to 	one-third of 	a 	mile 	from the 	first
set. 	In order 	to 	travel 	from one 	set 	of 	kitchens 	to the other,
it 	is necessary to go through at 	least 	one, 	and as many as 	four,
security gates. 	Estimates 	of 	the 	time 	to 	reach all 	four of 	the
assigned 	satellite 	kitchens 	ranged 	from 	five minutes 	to 	one-half
hour.
The 	satellite kitchens have refrigeration units, 	ovens,
areas 	for meal 	assembly, 	a scullery, 	a cafeteria style 	food line,
and a dining area. 	Under 	supervision, 	inmate 	crews prepare 	and
serve meals, 	and clean up afterwards.
11

This 	cook-chill 	process 	is used 	for most 	evening meal
entrees 	and partly for breakfasts, 	depending on the menu. 	In
addition to 	reheating the 	cook-chill 	food, 	the 	satellite 	kitchen
staff prepares 	such items as pancakes, 	french toast, 	hamburgers,
eggs, 	hash brown potatoes, 	fish, 	steaks and many types of
vegetables.
Minimum Requirements 	for 	SCI 	Positions
The 	minimum requirements 	for a position as 	a 	CDC 	SCI 	are 	as
follows: 	(1) 	an eighth grade education; 	(2) 	five years
experience 	cooking 	for 	1,000 	or more 	in an 	institutional 	setting;
(3) 	passage of a written examination; 	(4) 	passage of an oral
examination; 	and 	(5) 	a personal 	interview by the 	food service
manager of 	the 	hiring prison. 	The 	examinations 	and 	interview
concern dietary needs, 	sanitation, 	food portioning, 	temperature
controls, 	cook-chilling and inmate control.
By way of 	contrast, 	it 	is not 	necessary for a CO to have 	any
kind of 	culinary experience 	or 	training prior 	to 	being 	assigned
to 	supervise 	a 	satellite 	kitchen.
Responsibilities 	of 	SCIs 	and COs 	in Satellite 	Kitchens
At 	all 	three prisons, 	each satellite 	kitchen has 	a 	full-time
CO 	supervising pre-meal 	preparation, 	meal 	production and 	serving
lines. 	On each of 	the two daytime 	shifts, 	one 	SCI 	is assigned to
oversee 	the 	four 	satellite 	kitchens 	on each yard. 	The 	assigned
SCI 	moves 	between his/her assigned kitchens 	during meal
preparation and serving periods, 	providing training, 	advice 	and
instructions, 	to whatever extent possible. 	When staff 	is
12

available, 	a roving SCI 	is assigned to every two yards, 	or eight
kitchens.11 This 	rover 	is primarily a problem-solver, 	going
wherever needed. 	According to CDC, 	the 	SCIs 	are 	the ultimate
authority for 	"cooking" 	decisions 	at 	each kitchen. 	However, 	many
of 	the 	decisions 	are made 	without 	input 	from the 	SCI 	as 	s/he 	is
only present 	a 	small 	percentage 	of 	the 	time 	that 	food 	is 	being
prepared 	and served. 	In addition to 	supervisorial 	duties 	in the
satellite kitchens, 	nearly half of a SCI's 	time 	is 	spent 	in the
main kitchen overseeing 	the 	selecting, 	packing 	and 	transporting
of 	the next 	day's meals.
There 	are 	between 	five 	and 	twelve 	inmate 	workers 	assigned 	to
each 	satellite 	kitchen. 	The 	kitchen 	inmate personnel 	are
constantly changing. 	It 	is not 	unusual 	to have one 	or two new
inmates 	on the 	crew each day. 	Even though the 	SCI 	is 	responsible
for the ultimate 	food product, 	s/he 	is not 	able 	to do most 	of 	the
training of 	the 	inmate workers, 	as 	s/he 	cannot be 	in 	four places
at 	once. 	The 	culinary CO does most 	of 	the actual 	training. 	If
this CO is experienced, 	the process works 	fairly well, 	absent
unusual 	circumstances. 	If not, 	chaos can develop.
The 	high rotational 	level 	of 	the 	COs 	presents 	an additional
problem for the 	SCIs. 	The 	regularly assigned CO, 	once
experienced, 	is not 	a major problem. 	However, 	on his/her days
off 	it 	is 	not 	uncommon to have 	a 	CO assigned to 	culinary duty who
has never previously been in a satellite kitchen. 	COs, 	as a
11Corcoran II 	has 	only one yard with 	satellite 	kitchens.
There was 	no 	evidence 	of 	a 	rover being utilized at 	that 	prison.
13

general 	rule, 	do not want 	to work in kitchens. 	In addition, 	the
prisons 	often 	staff 	the 	satellite 	kitchens 	with permanent
intermittent 	employees 	(PIEs),12 in order to 	cut 	down on overtime
costs. 	Because of 	this, 	the 	SCIs 	are 	constantly attempting to
train COs, 	as well 	as inmate workers.
The 	duties 	and 	responsibilities 	of 	satellite 	kitchen 	SCIs
are 	reflected 	in 	their post 	orders.13 The post 	orders 	at 	High
Desert 	for a third 	(afternoon) 	shift 	SCI 	are, 	in pertinent part,
as follows:
GENERAL 	STATEMENT
. 	. 	. 	the Supervising Cook I's will 	supervise
inmate 	Food 	Service 	workers 	assigned 	to your
work area. 	Responsible 	for 	checking 	the
delivered 	food prior 	to 	preparing 	the 	planned
menu. 	Ensure 	that 	the 	food quality standards
are 	maintained. 	Supervise 	and be 	responsible
for 	inmates 	preparation of 	food production
according 	to 	the 	institutional 	recipes.
Prepare 	for 	the 	next 	days 	production whenever
possible.
SPECIFIC DUTIES AND 	RESPONSIBILITIES:
4. 	Teach, 	train, 	instruct and pass
information 	to 	the 	Culinary Officer 	of 	Food
Service 	Standards 	and procedures, 	HACCP
12PIEs, 	although fully trained COs, 	work on a part-time basis
(no more 	than 	1,500 	hours per year). 	They do not 	have 	regular
assignments 	and are 	often used as vacation 	and 	regular day off
relief.
13Post 	orders 	are provided 	for each CO and 	SCI 	position 	in
the prison. 	They set 	forth, 	with a high degree of 	specificity,
exactly how each SCI 	or CO 	is 	to 	fulfill 	the 	responsibilities 	of
that position. 	They describe 	the hour-by-hour tasks 	as well 	as
how 	to 	respond 	to various 	interpersonal 	conflicts 	and
emergencies. 	Failure 	to be 	aware of 	and/or to 	follow one's post
orders 	is 	a 	serious 	CDC offense. 	These post 	orders 	are 	developed
and 	refined over many years 	and are 	subject 	to 	annual 	revision.
14

procedures,[14] quality and quantity controls,
rethermalization procedures 	and 	techniques,
sanitation 	standards 	and 	accountability.
5. 	Ensure 	each 	Satellite 	Kitchen receives
appropriate amounts 	of 	food. 	Receive
Culinary Officer 	signature 	in 	agreement 	on
amount 	of 	food.
DAILY ROUTINE DUTIES:
1500 	HOURS 	Assist 	each 	Culinary Officer
as 	needed 	for 	rethermalization
process 	of 	the dinner meal.
1700 	HOURS 	Feeding 	starts 	as 	soon 	as
count 	clears. 	Float between
the 	Satellite Kitchens,
assuring:
1 ) . 	Correct 	issue is being served.
2 ) . 	No food shortages occur.
3 ) . 	Assist the Culinary Officer
as needed.
WEEKLY:
Assist 	the 	Culinary Officer 	in giving 	a
safety meeting with 	all 	inmate 	culinary
workers, 	for a minimum of 15 minutes, 	. 	. 	.
An examination of 	a CO's 	job description 	shows 	that 	the
primary emphasis 	of 	his/her duties 	is 	to maintain 	safety and
security. 	Whereas, 	the 	SCI's 	job description clearly shows 	that
his/her primary emphasis 	is 	to 	ensure 	that 	food production 	and
service 	are 	provided with the 	highest 	possible 	level 	of 	quality
and 	sanitation.
14HACCP 	is 	an acronym for Hazards, 	Analytical 	Critical
Control 	Points, 	which sets 	forth the rules governing the
preparation of 	food 	in the prisons. 	It 	is 	the 	system that
insures 	food 	is 	maintained at 	proper temperatures 	and does 	not
spoil.
15

Traditionally, 	the 	employees 	in these 	two 	classifications
have 	shared 	responsibility with regard 	to 	the 	supervision 	of 	the
culinary inmate workers. 	At 	the main kitchen, 	the 	SCIs manage
the 	inmate 	cooks 	and back dock workers, 	whereas 	the 	COs manage
the 	dining hall 	and 	line-server 	inmates. 	Each of 	them is
responsible 	for their inmates' 	tools, 	behavior, 	work product and
time 	cards. 	The 	respondent 	cites 	the 	administrative 	segregation
(ad seg) 	unit 	and the medical 	clinic 	as 	examples 	of 	areas 	in
which 	the 	COs 	have 	traditionally 	fed 	inmates 	without 	the
assistance of 	SCIs. 	However, 	as these 	"culinary" 	duties do not
include preparation, 	but 	are 	limited to delivering 	food trays,
this 	example has 	little 	relevance 	to 	the 	subject 	issue.
In the 	satellite kitchens, 	the 	COs 	are directly and totally
responsible 	for all 	inmate 	culinary workers. 	This 	responsibility
can be 	so absolute 	that 	if 	a 	SCI 	wants 	an inmate 	in one of his
assigned 	satellite 	kitchens 	to 	do 	something he 	must 	direct 	his
request 	to the CO who, 	in turn, 	tells 	the 	inmate 	to take 	the
requested 	action.
Administrative 	Segregation 	and 	Clinic 	Culinary 	Practices
The 	inmates 	in the 	ad seg unit 	are 	all 	in a 	"locked down"
status, 	i.e., 	they remain in their cells throughout 	all, 	or at
least 	almost 	all, 	of 	the day. 	They are 	fed by COs who bring 	food
trays 	to 	them. 	The 	food trays 	are 	prepared 	in the 	nearest
satellite 	kitchen and are 	transported to 	the unit. 	The 	ad 	seg 	CO
takes 	the 	food's 	temperature 	and inserts 	the 	results 	on the
appropriate 	form. 	A 	similar procedure 	is 	followed with 	regard 	to
16

the 	inmates 	requiring medical 	attention, 	who are 	temporarily
housed 	in the 	clinic.
Food 	Temperature 	Requirements
CDC 	requires 	the 	temperature 	of 	the 	food to be 	taken at
least 	four different 	times 	during each 	feeding 	cycle. 	First,
when 	it 	is 	brought 	into 	the 	kitchen and placed 	in 	storage.
Second, 	when it 	taken out 	of 	storage. 	Third, 	immediately after
it 	has been cooked, 	and again when it 	is being served. 	If 	the
food is 	not maintained at 	the 	correct 	temperatures, 	sickness
could develop. 	If 	the 	food becomes 	contaminated, 	it has been
made very 	clear 	that 	the 	involved 	SCI 	will 	be 	held 	responsible.
Food 	Tasting 	Procedures
Each meal 	is required to have three tasters, 	a SCI, 	a
correctional 	staff 	member, 	usually a 	sergeant 	or 	lieutenant 	and
an 	inmate. 	Each 	is 	required to taste 	the 	food and write 	down
his/her comments 	about 	it 	in a daily log. 	If 	a meal 	is
unsatisfactory, 	for any reason, 	it 	is discarded and a replacement
meal 	is provided.
ISSUES
1. 	Is 	this 	unfair practice 	charge barred by the provisions
of section 3514.5(a) (1)?
2. 	If 	it 	is not barred, 	has CDC unlawfully transferred SCI
work to COs, 	in violation of 	subdivision 	(c) 	of 	section 3519?
17

CONCLUSIONS 	OF 	LAW
Issue No. 	1
The 	statute 	of 	limitations 	begins 	to 	run on the 	date
charging party obtains 	actual 	or 	constructive 	knowledge 	of 	the
subject 	conduct. 	(Fairfield-Suisun Unified 	School 	District
(1985) 	PERB Decision No. 	547; 	The Regents of the University of
California 	(1990) 	PERB Decision No. 	826-H; 	Regents of 	the
University of 	California 	(1993) 	PERB Decision No. 	1002-H; 	Regents
of 	the University of California 	(1993) 	PERB Decision No. 	1023-H.)
Even 	actual 	knowledge must 	"clearly 	inform" 	the 	charging
party of 	the 	alleged unlawful 	act. 	In Victor Valley Union High
School District 	(1986) 	PERB Decision No. 	565, 	at pp. 	5-6 	(Victor
Valley UnHSD), 	the 	Board described the 	required notice 	in the
following 	terms:
Notice 	of 	a proposed change must 	be 	given to
an official 	of 	the 	employee 	organization who
has 	the 	authority to 	act 	on behalf 	of 	the
organization. 	The notice must 	be
communicated 	in 	a 	manner which clearly
informs 	the 	recipient 	of 	the proposed 	change.
Even in the absence of 	formal 	notice, 	proof
that 	such an official 	had actual 	knowledge 	of
the proposed change will 	suffice. 	Notice
must 	be 	given sufficiently in advance 	of 	a
firm decision to make 	a 	change 	to 	allow the
exclusive 	representative 	a 	reasonable 	amount
of 	time 	to decide whether to make 	a 	demand to
negotiate. 	. 	. 	. 	As waiver is an affirmative
defense, 	an employer asserting a waiver of
the 	right 	to bargain properly bears 	the
burden of 	proving 	that 	the 	exclusive
representative 	failed 	to 	request 	bargaining
despite 	receiving 	sufficient 	notice 	of 	the
intended change. 	[Emphasis added; 	fn.
omitted.]
18

The 	decision in SA-CE-835-S 	clearly shows 	that 	in 	1987 	CSEA
had knowledge of 	the 	SCI 	staffing ratio at 	CSP 	Sacramento, 	and
was 	therefore 	precluded 	from bringing 	that 	charge. 	CDC 	contends
that 	CSEA's 	knowledge 	of 	that 	staffing pattern 	imparts 	knowledge
of Salinas Valley's 	staffing patterns, 	therefore, 	it 	is precluded
from bringing 	this 	charge. 	This 	contention 	is 	not 	supported by
credible 	evidence.
Salinas 	Valley activated 	its 	satellite 	kitchens 	in July,
August 	or September 	1997. 	CSEA filed its 	charge 	on April 	16,
1998. 	The crucial 	question becomes, 	"[H]ow soon before April 	16,
1998 	did CSEA have 	knowledge 	that 	at 	Salinas Valley one 	SCI 	would
not 	be 	assigned to 	each satellite 	kitchen?" 	If 	it 	had actual 	or
constructive notice prior to October 16, 	1997, 	the charge 	is
barred by the provisions 	of 	section 3514.5(a)(1).
The 	following 	factors 	have 	some 	relevance 	in determining 	the
answer to 	this 	question:
1. 	CDC 	contends 	that 	CSEA's 	involvement 	with the 	CSP
Sacramento 	case 	automatically transmitted knowledge 	to 	it 	of 	the
staffing patterns 	at 	High Desert's 	originally, 	and 	Salinas Valley
and Corcoran II, 	eventually. 	And yet, 	CDC failed, 	when
presenting its 	case, 	to openly state that 	it was going to
continue 	to 	staff 	all 	new 	satellite 	kitchens with 	less 	than 	a 	1:1
ratio. 	CDC's 	failure 	to clearly state 	its 	intentions 	in March
1997, 	when the CSP Sacramento case was heard, 	suggests 	that 	this
staffing plan was 	either not yet 	finalized, 	or 	if 	already
conceived, 	was being kept 	secret.
19

2. 	Stone, 	CSEA's Unit 	15 	chair, 	did not know of any
satellite kitchens, 	other than CSP Sacramento, 	that were being
staffed at 	less 	than 1:1 until December 2, 	1997, 	when he and
Hughes 	toured 	Salinas 	Valley on 	an unrelated matter.
3. 	The 	emphasis 	of 	both the 	respondent's 	questions 	and its
brief 	suggests 	the 	practice 	at 	Pelican Bay 	should have 	given CSEA
the 	requisite 	knowledge 	of 	CDC's 	satellite 	kitchen 	staffing
practices throughout 	the 	state. 	However, 	there was no credible
evidence 	to 	suggest 	that 	CSEA had knowledge 	of 	what 	was 	occurring
at 	Pelican Bay. 	There was 	evidence 	that 	Stone 	had 	some 	contact
with a 	SCI, 	who worked at 	Pelican Bay prior to transferring to
High Desert. 	However, 	this 	contact was 	limited to a minor
unrelated 	issue.
Losik, 	when he 	surveyed his 	state-wide 	field representatives
in May 1994, 	received no 	information from Pelican Bay. 	In
addition, 	Cowan's 	discussion of 	Pelican Bay shows 	that 	between
June 	1996 	and June 	1998, 	there were 	fluctuating circumstances
regarding 	the 	staffing patterns 	at 	that 	prison.
4. 	Bryant 	states 	that 	she was unaware of 	the 	SCI 	staffing
issue 	at 	any prison prior to early 	1996. 	She 	also 	states 	that
she was 	generally aware 	of 	the 	issue 	in July 	1997 	and 	learned
that 	it 	was 	not 	confined to High Desert 	sometime 	during Hughes'
assignment 	to Unit 	15. 	That 	assignment 	ranged 	from July 	1997 	to
May 29, 	1998.
20

Summary
Respondent 	contends 	that 	CSEA's 	knowledge 	of 	CSP 	Sacramento
staffing patterns 	automatically means 	it 	was 	aware 	that 	CDC was
going 	to 	staff 	all 	future 	satellite 	kitchens 	in the 	same manner.
There 	is 	no 	credible 	evidence 	to 	support 	this 	contention.
It 	was 	determined 	in 	the 	High Desert 	Proposed Decision 	that
the 	charge 	in that 	case was 	not 	time-barred. 	There was 	nothing
in 	the 	facts 	of 	that 	case 	that 	would 	suggest 	that 	CSEA had
knowledge 	of 	the 	Salinas 	Valley 	satellite 	kitchen 	staffing
practices.
The 	testimony of 	Losik, 	Bryant 	and Stone provided definite
knowledge 	regarding 	CSP 	Sacramento, 	but 	provided no 	credible
evidence 	they were 	aware 	of 	Salinas 	Valley's 	staffing patterns
prior to October 	16, 	1997. 	Hughes was not 	even involved in the
process until 	late 	summer 	1997, 	so 	she 	could not 	have been privy
to 	any Salinas Valley 	information prior 	to 	that 	time. 	She made
no 	statement 	that 	would 	suggest 	she 	became 	aware 	of 	the 	staffing
pattern at 	Salinas Valley prior to October 	16, 	1997.
CDC's 	failure 	to assert 	in Case No. 	SA-CE-835-S 	that 	all
prisons 	it 	would open 	in 	the 	future would duplicate 	this 	staffing
pattern, 	suggests 	that 	this knowledge was 	not 	as 	open and
prevalent 	as 	it 	contends.
The 	fact 	that 	notice was 	not 	given of 	such activation 	lends
support 	to 	a 	conclusion 	that 	CSEA had neither 	actual 	nor
constructive 	notice 	of 	Salinas 	Valley's 	activation prior 	to
October 16, 	1997.
21

There 	is 	nothing 	in any of 	the 	proffered evidence 	that
proves, 	or even strongly suggests, 	someone at 	CSEA 	"who had the
authority to 	act 	on behalf 	of 	the 	organization" 	received actual
notice prior to October 16, 	1997, 	that 	Salinas Valley was going
to 	staff 	its 	satellite kitchens 	at 	less 	than a 	1:1 	ratio. 	Nor 	is
there 	any evidence 	in the 	record upon which 	I 	can 	conclude 	that
CSEA had 	constructive 	knowledge 	of 	the 	staffing pattern 	at
Salinas Valley.
Based on the 	foregoing, 	it 	is 	determined that 	the 	charge 	is
not time-barred by the provisions of section 3514.5(a) (1) .
Issue No. 	2 	- 	If it 	is not barred, 	has CDC unlawfully transferred
SCI work to COs, 	in violation of 	subdivision 	(c) 	of 	section 3519?
Relevant 	Case 	Citations
PERB, 	in 	State of California 	(Department 	of 	Personnel
Administration) 	(PECG) 	(1987) 	PERB Decision No. 	648-S 	(PECG v.
DPA) 	stated:
DPA's 	argument 	does 	not 	confront 	the 	"work
preservation" 	aspect of this proposal,
however. 	It 	is well 	settled that work
preservation is 	a valid 	subject 	of
bargaining, 	as 	noted by a 	long 	line 	of 	PERB
and NLRB cases. 	Thus, 	where a transfer of
work occurs 	in a 	situation that 	is not 	an
emergency, 	the union does 	have 	a vested right
in maintaining what 	it 	already has. 	To
excuse 	the 	transfer of 	work merely because 	of
a 	"policy change" 	by management 	would defeat
the purpose of 	collective bargaining, 	and
could 	easily shelter 	an employer who 	artfully
chooses 	his 	words 	and ends 	up gutting 	an
entire 	bargaining unit 	of 	its 	work on 	the
basis of 	a policy change. 	[Emphasis added.]
PERB, 	in Rialto Unified School 	District 	(1982) 	PERB Decision
No. 	209 	(Rialto), 	citing International Harvester 	(1976) 	227 NLRB
22

85 	[93 	LRRM 1492] 	and American Needle and Novelty Co. 	(1973) 	206
NLRB 534 	[84 	LRRM 1526] 	citing Fibreboard Paper Products Corp. 	v,
NLRB 	(1964) 	379 U.S. 	203, 	213 	[57 LRRM 2609], 	stated:
. 	. 	. 	the transfer of jobs from the
bargaining unit 	to non-unit 	employees,
with an 	adverse 	impact 	on 	the 	unit
employees, 	imposed on the 	employer the
obligation 	to negotiate 	the 	decision 	to
relocate the jobs. 	. 	. 	.
In Rialto, 	PERB 	favorably cited UAW v. 	NLRB(General 	Motors)
(D.C. 	Cir. 	1967) 	381 	F.2d 265 	[64 	LRRM 2489], 	as 	follows:
. 	. 	. 	the United States Circuit Court 	found
this 	obligation to 	exist 	even 	though 	the
affected 	employees 	were 	assigned 	other 	unit
work and 	there 	was 	no 	demonstrable 	change 	in
their wages 	or hours. 	The 	Court 	reasoned
that 	the 	reduction of 	the 	whole 	number of
jobs 	within 	the 	unit 	itself 	triggered 	the
bargaining 	obligation.
The 	Board observes 	that 	the 	unilateral
transfer of 	work can create 	a 	conflict
between the employer and its employees. 	. 	. 	.
the viability and effectiveness 	of 	the
employee 	organization 	is 	adversely affected
by diminution of 	the unit. 	[Citation.]
In discussing 	an 	employer's 	attempt 	to 	create 	and 	abolish
classifications, 	thereby transferring traditional 	duties 	between
various 	bargaining units, 	PERB, 	in Alum Rock Union Elementary
School District 	(Alum Rock) 	(1983) 	PERB Decision No. 	322, 	stated:
. 	. 	. 	we find that those aspects of the
creation 	or 	abolition of 	a 	classification
which merely transfer 	existing 	functions 	and
duties 	from one 	classification 	to 	another
involve 	no 	overriding managerial 	prerogative.
Such changes 	amount 	to 	transfers 	of work
between employees 	or groupings 	of 	employees,
similar 	to 	decisions 	to 	subcontract 	work or
to 	transfer work out 	of 	the bargaining unit.
23

They do 	not 	represent 	a 	decision 	to 	undertake
a 	new 	function or 	to 	eliminate 	an existing
function. 	Thus, 	no decision on what
functions 	are 	essential 	to management's
mission is 	involved. 	The 	same 	functions 	are
still 	being performed; 	an existing
classification 	is 	merely 	replaced by a 	new
classification 	to 	do 	the 	same 	work under
similar conditions of employment. 	. 	. 	.
(Emphasis added; 	fn. 	omitted.)
Analysis
In 	this 	case 	CDC unilaterally modified 	the 	traditionally
intertwined responsibilities 	of 	SCIs 	and COs 	in prison kitchens.
When 	it 	did 	this 	it 	relegated the 	SCI 	to 	a 	almost 	purely advisory
role. 	In the past, 	the 	SCI 	would have hands-on responsibility
for 	a 	kitchen's 	preparation 	and 	cooking 	function 	and 	the 	CO would
be 	responsible 	for 	its 	serving and dining 	room 	function. 	Without
the 	subject 	modification 	each of 	these 	employees 	would be
responsible 	for his/her 	inmates, 	tools 	and culinary functions.
With the modification, 	the 	CO became 	responsible 	for both
functions 	and all 	of 	the 	inmates, 	with a minimal 	level 	of
oversight 	from the 	SCI.
Even 	a 	cursory examination of 	the minimum requirements 	for
positions 	in the 	SCI 	classification, 	clearly shows 	that 	the 	job
is 	a very skilled one. 	The prison SCI, 	whether s/he 	is 	in a main
or 	satellite 	kitchen, 	is both a teacher and a 	"doer." 	S/he uses
his/her 	experience 	to 	show and 	teach the 	inmates 	how to 	prepare
meals 	for literally thousands 	of people 	each day. 	It 	is 	clear
that under CDC's modification this 	experience, 	to a 	large 	extent,
becomes 	lost 	to the process.
24

And yet, 	the 	SCI 	is 	still 	held responsible 	for the ultimate
product 	at 	four 	kitchens 	when 	s/he 	cannot 	possibly have 	any
effective 	control 	over what 	occurs 	at 	those 	kitchens. 	The
evidence 	clearly shows 	that 	there 	is 	a 	constant 	turnover of 	both
COs 	and inmate 	culinary workers. 	It 	is 	not 	possible 	for a 	SCI 	to
be 	responsible 	for 	four kitchens 	and have 	an effective 	impact 	on,
much less control, 	forty-four15 culinary workers.
The 	SCIs' 	post orders are 	illusory at best, 	and
misrepresentations, 	at worst. 	There 	is no way a SCI who is
assigned 	to 	four kitchens 	can 	reasonably be 	held 	responsible 	to
(1) 	"supervise Food Service workers," 	(2) 	"supervise and be
responsible for inmates preparation of food production. 	. 	. 	" 	or
(3) 	assure 	(a) 	"correct 	issue is being served" 	and 	(b) 	"no food
shortages 	occur." 	This 	is 	especially true when, 	as 	described by
one 	Salinas Valley SCI, 	s/he 	may not 	even personally direct 	the
inmates, 	but must go through the culinary CO.16
There 	is 	no 	doubt 	that 	CDC's 	unilateral 	modification has
taken 	effective 	control 	of 	the 	cooking process 	away 	from Unit 	15
SCIs and given it 	to Unit 	6 	COs, 	leaving the SCIs with only the
responsibility 	for 	the 	end product. 	Obviously this 	is 	an
untenable 	situation 	and one 	that 	violates 	the 	"work preservation"
15This 	figure 	assumes 	one 	CO and an average 	of 	ten inmate
culinary workers 	per 	kitchen.
16This 	is 	not 	to 	suggest 	that 	this 	"single 	supervisor"
practice 	is 	improper 	from a personnel 	management 	perspective.
Getting 	an effective work product 	out 	of 	inmates 	is 	difficult
enough without 	requiring 	them 	to 	be 	simultaneously 	responsible 	to
multiple 	supervisors.
25

rights of Unit 	15 	employees. 	(PECG v. 	DPA.) 	Absent 	the
agreement of 	the Unit 	15 	representative, 	CSEA, 	it 	is a violation
of 	subdivision 	(c) 	of 	section 3519 	of 	the Dills Act. 	(See also
Rialto and UAW v. 	NLRB 	(General Motors), 	supra, 	381 	F.2d 265 	[64
LRRM 	2489].)
Respondent 	Defenses
New Work
CDC insists 	this was 	"new work," 	therefore, 	it 	is not
required to maintain the 	SCIs' 	traditional 	role 	in the 	food
service process. 	However, 	it 	fails 	to explain why food
preparation 	in 	satellite 	kitchens 	should be 	considered 	"new
work," 	when 	SCIs 	have 	always 	been 	involved 	in the 	preparation of
food 	in the prisons' 	kitchens. 	The only thing that 	has 	changed
is 	the place 	in which the primary entree 	is 	cooked. 	This 	change
is 	insufficient 	to 	alter the 	nature 	of 	the work to 	the 	degree
that 	CDC's 	obligation to maintain 	the 	status 	quo 	is 	abrogated.
Absent 	CDC's 	improper modification, 	all 	food in the 	satellite
kitchens 	would 	still 	be 	cooked by 	inmates 	under 	the 	culinary
control 	of 	the 	SCIs 	and the 	security control 	of 	the 	COs 	in
exactly the 	same manner as 	in the main kitchens.
Based on the 	foregoing, 	it 	is 	determined that 	CDC's 	defense
regarding 	"new work" 	is 	insufficient 	to 	defend 	it 	from the 	charge
it violated subdivision 	(c) 	of 	section 3519.
No 	Deprivation of 	Work
CDC asserts, 	in its brief, 	that 	SCIs are precluded from
complaining 	about 	the 	staffing patterns 	because 	no 	SCI 	was
26

- -
deprived of 	any particular work. 	First, 	this 	statement 	is
incorrect 	in that 	the 	SCIs 	are 	deprived of 	using 	their 	skills 	and
experience 	in directly 	supervising 	the 	preparation 	of 	meals.
Secondly, 	Unit 	15 	is being deprived of work when these
responsibilities 	are 	transferred 	to Unit 	6. 	See 	the 	"work
preservation" 	concept discussion, 	supra.
Lastly, 	UAW v. 	NLRB 	(General Motors), 	supra, 	381 F.2d 265
[64 LRRM 2489], 	states that 	it 	is not necessary to show a
"demonstrable 	change 	in wages 	or hours" 	to 	find a violation. 	The
court 	stated 	"the 	reduction of 	the 	whole number of 	jobs 	within
the 	unit 	itself 	triggered 	the 	bargaining obligation."
Based on the 	foregoing, 	it 	is 	determined that 	CDC's 	theory
regarding an absence 	of 	"deprivation of 	work" 	is 	insufficient 	to
defend it 	from the 	charge 	it violated subdivision 	(c) 	of
section 3519.
Waiver
PERB has 	held that 	any waiver of 	the 	right 	to negotiate must
be 	"clear and unmistakable." 	(Amador Valley Joint 	Union High
School District 	(1978) 	PERB Decision No. 	74.) 	However, 	CDC
points 	out 	that 	contract 	terms 	can 	justify a unilateral
management 	act 	if 	the 	contract 	expressly or by necessary
implication confers 	such right. 	(Los Angeles 	Community College
District 	(1982) 	PERB Decision No. 	252 	(Los Angeles CCD).)
CDC admits 	that 	a general management 	rights 	clause 	is 	not
usually considered a waiver of union rights. 	It 	insists,
however, 	that MOU Article 4.b. 	is different, 	because, 	as it
27

states 	in its brief, 	it 	"delineates a clear line, 	by successive
illustrations, 	of what 	types 	of 	activities 	are 	reserved to
management." 	MOU Article 4.b., 	in pertinent part, 	states 	as
follows:
Consistent with this 	Contract, 	the rights 	of
the 	State 	shall 	include, 	but not be 	limited
to, 	the right, 	. . . 	to determine the
methods, 	means 	and personnel 	by which State
operations 	are 	to be 	conducted; 	. . . . 	to
exercise 	control 	and discretion over 	the
merits, 	necessity, 	or organization of any
service 	or 	activity 	provided 	by 	law 	. . . .
It 	is 	difficult 	to 	see how this very broad language 	is 	any
different 	from the 	dozens 	of 	other management 	rights 	clauses
evaluated by PERB 	each year. 	Even 	in the 	case 	cited by CDC,
Los Angeles 	CCD, 	PERB made 	it very clear that 	the 	contractual
provisions 	cited by the 	respondent 	in 	that 	case 	contained no
provision 	"expressly reserving 	to 	the 	District 	the 	right 	to
change 	or eliminate 	shifts." 	Nor was 	such a 	right 	necessarily
implied.
Similarly, 	in this case, 	MOU section 4.b. 	contains no
language 	expressly reserving 	to 	CDC 	the 	right 	to 	transfer duties
from one 	bargaining unit 	to 	an other without 	negotiating 	the
matter with 	the 	appropriate 	employee 	representative.
In addition, 	the Board's 	decision in Alum Rock 	is 	of 	some
relevance 	and instructive 	in this 	case. 	That 	case 	concerns 	the
creation or 	abolition of 	classifications 	and 	is 	often 	cited 	in
scope of 	negotiation cases. 	It 	states 	that 	changes 	"which merely
transfer 	existing 	functions 	and 	duties 	from one 	classification 	to
another 	involve 	no 	overriding management 	prerogative."
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Based on 	the 	foregoing, 	it 	is 	determined that 	in agreeing to
the 	cited MOU provision, 	CSEA did not 	waive 	its 	right 	to 	object
to 	CDC's 	modification of 	staffing patterns 	in 	its 	satellite
kitchens.
Overlapping 	Duties
CDC 	relied heavily, 	in both testimony and 	in 	its brief, 	on
the 	overlapping duties 	of 	the 	SCIs 	and COs 	to 	justify 	its
staffing decision. 	This reliance 	is not 	justified. 	It 	is 	true
that 	the 	employees 	in the 	two classifications 	have 	traditionally
shared responsibilities 	in prison kitchens. 	However, 	the 	SCIs
have 	directed 	their 	attention to 	the 	actual 	preparation of 	the
food, 	whereas 	the 	COs have dealt with its 	serving and overall
kitchen security. 	Under this procedure, 	each employee 	is 	able to
use his/her experience 	to 	its 	fullest 	capacity.
CDC, 	in its brief, 	insists 	that 	the SCIs 	still 	exercise
judgment 	and discretion over 	"cooking work." 	This 	statement 	is
not 	supported by the 	evidence. 	The 	SCI, 	under CDC's modified
staffing pattern, 	is physically in his/her assigned kitchens, 	on
average, 	less 	than 2 0 percent of the time 	s/he would be there 	if
the 	pattern had not 	been modified.17 There 	is 	no 	reasonable
manner 	in which a 	SCI 	can exercise 	judgment 	and discretion over
"cooking work" 	when physically present 	only 20 	percent 	of 	the
cooking preparation 	and 	serving 	time.
17This percentage mathematically divides 	the 	SCIs' 	time
between 	four 	assigned 	satellite 	kitchens 	and 	factors 	in necessary
travel 	time.
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This 	is 	especially true 	in light 	of 	the 	acknowledged high
turnover rate. 	This 	factor alone makes 	it 	almost 	impossible 	for
a 	SCI 	to 	have 	any effective 	control 	over the 	"cooking work" 	other
than 	selecting 	and 	delivering 	the 	food. 	Running 	from kitchen 	to
kitchen during 	the 	two 	to 	three hour preparation and 	serving
period, 	permits 	the 	SCI 	only 	sufficient 	time 	to 	identify and cure
the most 	egregious 	of difficulties. 	There 	literally is no 	time
for 	"exercising 	judgment 	and discretion" 	over 	the process.
Under CDC's 	staffing pattern, 	the 	SCI 	is virtually
eliminated 	from any meaningful 	participation 	in 	the 	food 	service
process. 	S/he went 	from a 	full-time participant 	in meal
preparation and serving to a 20 percent participant, 	at 	best. 	A
diminution of 	this 	magnitude 	evidences 	a 	change 	in the 	quantity
and kind of 	the 	duties of 	the 	respective 	employees. 	Such a
change 	constitutes 	a unilateral 	change 	in an established policy.
(Oakland Unified School District 	(1983) 	PERB Decision No. 	367.)
Based on the 	foregoing, 	it 	is 	determined that 	CDC's 	theory
of 	"overlapping duties" 	is 	an 	insufficient 	defense 	to 	the 	charge
it violated subdivision 	(c) 	of 	section 3519.
Summary
From all 	of 	the 	foregoing, 	it 	is 	determined that 	when CDC
unilaterally modified 	the 	staffing 	pattern 	of 	its 	satellite
kitchens 	at 	Salinas 	Valley without 	affording 	CSEA an 	opportunity
to negotiate the matter, 	it violated subdivision 	(c) 	of 	section
3519.
30

CSEA's 	Right 	to Represent 	its Members
CDC's 	action also 	denied 	CSEA rights 	guaranteed 	to 	it 	by 	the
Dills Act, 	i.e., 	the right 	to represent 	its members 	in their
employment 	relations with the 	state. 	CDC's 	failure 	to negotiate
the 	SCI 	staffing patterns 	at 	Salinas Valley with CSEA,
derivatively violated subdivision 	(b) 	of 	section 3519.
Individual Employees' 	Rights
CDC's 	actions 	interfered with the 	involved SCIs, 	in that
they were 	not 	permitted to use 	their 	skills 	at 	their 	chosen
trade. 	In addition, 	they were held accountable 	for results 	over
which they had no 	real 	control. 	This 	constitutes 	a 	derivative
violation of 	subdivision 	(a) 	of 	section 3519.
SUMMARY
After 	an 	examination of 	the 	foregoing 	findings 	of 	fact 	and
conclusions of 	law, 	and the entire 	record in this 	case, 	it 	is
found that 	CDC 	(1) 	interfered with employees 	due 	to their
exercise 	of 	rights under the Dills Act 	(2) 	denied CSEA its 	right
to 	represent 	its 	members 	in their employment 	relations 	with the
state 	and 	(3) 	failed to negotiate 	in good 	faith over 	a matter
within the 	scope 	of 	negotiation. 	Such 	failure 	and denial
constitute violations of subdivisions 	(a), 	(b) 	and 	(c) 	of section
3519 of 	the Dills Act.
PERB, 	in section 3541.5 (c) 	is empowered to
. 	. 	. 	issue a decision and order directing an
offending party to 	cease 	and desist 	from the
unfair practice 	and 	to 	take 	such 	affirmative
action, 	including but 	not 	limited to the
reinstatement 	of 	employees 	with or without
31

back pay, 	as will 	effectuate 	the policies 	of
this 	chapter.
In order 	to 	remedy the unfair practice 	of 	the 	respondent 	and
to prevent 	it 	from benefitting 	from 	its 	unlawful 	conduct 	and
effectuate the purposes of 	the Dills Act, 	it 	is 	appropriate 	to
order CDC 	to 	(1) 	negotiate 	in good 	faith with CSEA over 	SCI
staffing patterns 	in the 	Salinas Valley satellite 	kitchens,
(2) 	cease denying to CSEA its 	right 	to represent 	its members 	in
their employment 	relations with the 	state, 	(3) 	cease 	interfering
with employee 	rights under the Dills Act, 	and 	(4) 	staff 	each of
its 	Salinas Valley 	satellite 	kitchens 	with one 	SCI 	per 	shift 	per
day.
In 	consideration of 	the 	difficulty of 	obtaining 	SCIs 	in the
Soledad rural 	area, 	the 	traditional 	cease 	and desist 	order will
be 	stayed for one hundred and twenty 	(12 0) 	calendar days. 	This
will 	give 	CDC 	sufficient 	time 	to negotiate 	an agreement 	with CSEA
that permits 	it 	to 	arrive 	at 	a 	solution to 	this 	recruitment
problem. 	If, 	at the end of that time, 	CDC has 	failed to
negotiate 	an agreement with CSEA on this 	subject, 	the 	cease 	and
desist 	order will 	become 	effective 	and 	it 	must 	staff 	each of 	its
satellite 	kitchens 	with one 	SCI 	per 	shift 	per day.
It 	is 	also appropriate 	that 	CDC be 	required to post 	a notice
incorporating 	the 	terms 	of 	the 	Order at 	all 	of 	its 	statewide
locations where 	notices 	are 	customarily placed 	for Unit 	15
employees. 	This 	notice 	should be 	subscribed by an authorized
agent 	of 	CDC, 	indicating that 	it will 	comply with the 	terms
therein. 	The notice 	shall 	not be reduced in size, 	defaced,
32

altered or 	covered by any other material. 	Posting 	such 	a notice
will 	provide 	employees 	with notice 	CDC 	has 	acted 	in 	an unlawful
manner 	and 	is 	being 	required to 	cease 	and desist 	from this
activity. 	It 	effectuates 	the purposes 	of 	the Dills Act 	that
employees 	be 	informed of 	the 	resolution of 	the 	controversy and
will 	announce 	CDC's 	readiness 	to 	comply with 	the 	ordered 	remedy.
(See 	Placerville Union School 	District 	(1978) 	PERB Decision No.
69.) 	In Pandol 	and Sons v. 	Agricultural 	Labor Relations Board
(1979) 	98 Cal.App.3d 580, 	587 	[159 Cal.Rptr. 	584], 	the California
District 	Court 	of Appeals 	approved 	a 	similar posting 	requirement.
(See 	also National 	Labor Relations 	Board v. 	Express 	Publishing
Co. 	(1941) 	312 U.S. 	426 	[8 LRRM 415].)
-
PROPOSED 	ORDER
Based on the 	foregoing 	findings of 	fact, 	conclusions 	of 	law,
and the 	entire 	record in the 	case, 	it 	is 	found that 	the 	State of
California 	(Department of Corrections) 	(CDC) 	violated the
Ralph C. 	Dills Act, 	Government Code section 3519(a), 	(b) 	and 	(c).
Therefore, 	it 	is hereby ORDERED that CDC, 	its administrators and
representatives 	shall:
A. 	CEASE AND DESIST 	FROM:
1. 	Failing 	to negotiate with the 	California 	State
Employees Association, 	SEIU Local 	1000 	(CSEA), 	over a matter
within the 	scope 	of 	negotiation of 	its members 	in Unit 	15;
2. 	Interfering with the 	Supervising Cook 	Is 	(SCIs) 	at
Salinas Valley State 	Prison 	(Salinas Valley), 	due to their
exercise 	of 	rights guaranteed by the Dills Act; 	and
33

3. 	Denying to 	CSEA its 	right 	to 	represent 	its 	members
with regard to 	the 	staffing patterns 	for 	SCIs 	at 	Salinas Valley.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTION DESIGNED 	TO
EFFECTUATE 	THE 	POLICIES 	OF THE DILLS ACT:
1. 	Negotiate with CSEA, 	upon demand, 	the 	staffing
patterns 	for SCIs 	at 	Salinas Valley;
2. 	One hundred and twenty 	(12 0) 	calendar days after a
final 	decision in this matter, 	unless 	an agreement 	with CSEA to
the 	contrary has 	been reached, 	staff 	each of 	the 	satellite
kitchens 	at 	Salinas Valley with one 	SCI 	per 	shift 	per day;
3. 	Within ten 	(10) 	workdays of 	service of 	a 	final
decision 	in this matter, 	post 	at 	all 	statewide 	locations where
notices 	are 	customarily posted for its Unit 	15 	employees, 	copies
of 	the 	notice 	attached hereto 	as 	an Appendix. 	This 	notice 	should
be 	subscribed by an authorized agent 	of 	the 	State, 	indicating
that 	it 	will 	comply with the 	terms 	therein. 	The 	notice 	shall 	not
be 	reduced 	in 	size, 	defaced, 	altered or covered by any other
material; and
4. 	Upon issuance of a final 	decision, 	make written
notification of 	the 	actions 	taken to 	comply with this 	Order to
the 	Sacramento 	Regional 	Director of 	the 	Public 	Employment
Relations 	Board 	in accordance with his 	instructions. 	Continue 	to
report, 	in writing, 	to the regional director thereafter as
directed. 	All 	reports 	to the 	regional 	director 	shall 	be
concurrently 	served 	on 	the 	charging party herein.
It 	is 	further Ordered that 	all 	other aspects 	of 	the 	charge
and 	complaint 	are 	hereby DISMISSED.
34

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 2 0 	days 	of 	service
of 	this Decision. 	The Board's address 	is:
Public 	Employment 	Relations 	Board
Attention: 	Appeals Assistant
1031 	18th Street
Sacramento, 	CA 95814-4174
FAX: 	(916) 	327-7960
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 Reg., 	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 or when mailed by certified or Express 	United 	States 	mail,
as 	shown on the postal 	receipt 	or postmarked or delivered to 	a
common carrier promising overnight 	delivery, 	as 	shown on the
carrier's 	receipt, 	not 	later than the 	last 	day set 	for 	filing.
(Code Regs., 	tit. 	8, 	sec. 	32135(a); 	see also Cal Code Regs.,
tit. 	8, 	sec. 23130.)
A document 	is 	also 	considered 	"filed" 	when 	received by
facsimile 	transmission before 	the 	close 	of 	business 	on the 	last
day 	for 	filing 	together with a 	Facsimile 	Transmission 	Cover 	Sheet
which meets the requirements of Cal. 	Code Regs., 	tit. 	8, 	sec.
32135(d), 	provided the 	filing party also places 	the original,
together with 	the 	required number of 	copies 	and proof 	of 	service
35

in the U.S. mail. 	(Cal. Code, Regs., 	tit. 	8, 	secs. 	32135 (b), 	(c)
and 	(c); 	see also Cal. 	Code Regs., 	tit. 	8, 	secs. 	32090 and
32130.)
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, 	32140, 	and 32135 (c).)
Allen R. 	Link
Administrative 	Law 	Judge
36