State of California (Department of Food and Agriculture) (PERB 1473S)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
CALIFORNIA UNION OF SAFETY
EMPLOYEES,
Charging Party,
V.
STATE OF CALIFORNIA (DEPARTMENT.OF
FOOD AND AGRICULTURE),
Respondent.
Case No. SA-CE-1291-S
PERB Decision No. 	14 7 3-S
January 	31, 	2002
Appearances: Linda M. Kelly, Legal Counsel, for California Union of Safety Employees;
State of California (Department of Personnel Administration) by Gail T. Onodera, Labor
Relations Counsel, for State of California (Department of Food and Agriculture).
Before Amador, Baker and Whitehead, Members.
DECISION
BAKER, Member: 	This case comes before the Public Employment Relations Board
(PERB or Board) on appeal by the California Union of Safety Employees (CAUSE) of a Board
agent's dismissal of its unfair practice charge. The charge alleged that the State of California
(Department of Food and Agriculture) (State) violated the Ralph C. Dills Act (Dills Act) 1 when
it unilaterally transferred work performed by Brand Inspectors out of State Bargaining Unit 7.
After review of the entire record in this matter, the Board reverses the Board agent's
dismissal and remands the case to the PERB General Counsel's office for further investigation
and processing consistent with this decision.
1 The Dills Act is codified at Government Code section 3512 et seq. Unless otherwise
indicated, all statutory references herein are to the Government Code.

BACKGROUND
CAUSE's unfair practice charge alleged the following:
The Brand Inspector civil service classification is included within State Bargaining
Unit 7 which is exclusively represented by CAUSE. Brand Inspectors perform functions
including livestock hide and brand inspection in various counties throughout the State.
On August 7, 2000, CAUSE Labor Representative Jimmy D. Southard (Southard) met
with the Department of Food and Agriculture's Chief, Bureau of Livestock Identification,
Glen Van Schaack (Van Schaack) and Department Labor Relations Officer, Paula Lewis
(Lewis). 	Southard noted that the job title "AI Brand Inspector" was included in the 1999
Brand Inspector Directory and he inquired as to the status of AI Brand Inspectors.
Van Schaack explained that those positions were filled by Agricultural Technicians on a part-
time, seasonal basis. Van Schaack advised that the Agricultural Technicians assisted the Brand
Inspectors, but they did not do the Brand Inspector's job. The Agricultural Technician
classification is not included in State Bargaining Unit 7.
In late October 2000, CAUSE received a copy of an LIS Bulletin Supplement, dated
October 24, 2000, which was issued by the Bureau of Livestock Identification. The bulletin
announced a job opportunity for an Agricultural Technician I position in San Luis Obispo
County. Attached to the bulletin was a job announcement for a Brand Inspector position in
Kem County.
In subsequent discussions with Lewis, CAUSE was advised that Van Schaack intended
to abolish the current Brand Inspector list. The incumbent Agricultural Technicians would
then be temporarily appointed as Brand Inspectors until a new list was established. 	The
2

Agricultural Technicians would have to successfully complete the Brand Inspector
examination and be placed on the new list to remain in their positions.
On February 8, 2001, Lewis notified CAUSE that Van Schaack had decided not to
abolish the Brand Inspector list and there would be no conversion of Agricultural Technicians
to Brand Inspectors. At that time, CAUSE requested that the State discontinue removing work
from the unit by using Agricultural Technicians to do the work assigned to the Brand Inspector
classification.
On February 28, 2001, CAUSE was informed that the State was auditing the
Agricultural Technician positions to verify that they were not doing Brand Inspector work.
As of April 3, 2001, four more Agricultural Technician positions had been advertised.
However, the charge alleged that there were 73 candidates remaining on the Brand Inspector
list who could perform this work.
The State Personnel Board (SPB) job specification for Agricultural Technician
(Seasonal) includes the following duties:
... assist in hide and brand inspection work and livestock
identification; assist in inspecting cattle and horses for proof of
ownership; issue inspection certificates; keep records of work
done; prepare reports and complete forms; complete and maintain
appropriate field notes and other documentation; and perform
certificate or other related data entry.
CAUSE and the State are parties to a memorandum of understanding effective July 1,
1999 through June 30, 2001. Article 20, the Entire Agreement clause, provides for arbitration
of disputes involving changes to subjects within the scope of negotiations. Article 20. B states,
in pertinent part:
The parties recognize that during the term of this Contract it may
be necessary for the State to make changes in areas within the
scope of negotiations. Where the State finds it necessary to make
3

such changes, the State shall notify CAUSE of the proposed
change thirty (30) days prior to its proposed implementation.
The parties shall undertake negotiations regarding the impact of
such changes on the employees in Unit 7, when all three (3) of
the following exists:
1. Where such changes would affect the working conditions of a
majority of Unit 7 employees by classification in a department.
2. Where the subject matter of the change is within the scope of
representation pursuant to the Ralph C. Dills Act.
3. Where CAUSE requests to negotiate with the State.
Any agreement resulting from such negotiations shall be executed
in writing and shall become an addendum to this Contract. If the
parties are in disagreement as to whether a proposed change is
subject to this Subsection, such disagreement may be submitted
to the arbitration procedure for resolution. The arbitrator's
decision shall be binding.
Article 20.1 A of the Memorandum of Understanding (MOU) states, in
pertinent part:
Except as provided in this Contract, it is agreed and understood
that each party to this Contract voluntarily waives its right to
negotiate with respect to any matter raised in negotiations or
covered by this Contract, for the duration of the Contract.
DISCUSSION
In reviewing an appeal from a Board agent's dismissal for failure to state a prima facie
case, the Board assumes that the essential facts alleged in the unfair practice charge are true.
(San Juan Unified School District (1977) EERB Decision No. 12.2)
Dills Act sec ti on 3 514. 5(a)(2) states, in pertinent part, that PERB shall not:
Issue a complaint against conduct also prohibited by the
provisions of the [collective bargaining] agreement between the
2 Prior to January 1978, PERB was known as the Educational Employment Relations
Board or EERB.
4

parties until the grievance machinery of the agreement, if it exists
and covers the matter at issue, has been exhausted, either by
settlement or binding arbitration.
In Lake Elsinore School District (1987) PERB Decision No. 646 (Lake Elsinore),
PERB held that section 3541.5(a)(2) of the Educational Employment Relations Act (EERA)3,
which contains language identical to Dills Act section 3514.5(a)(2), established a jurisdictional
rule requiring that a charge be dismissed and deferred if: (1) the grievance machinery of the
agreement covers the matter at issue and culminates in binding arbitration; and (2) the conduct
complained of in the unfair practice charge is prohibited by the provisions of the agreement
between the parties. PERB Regulation 32620(b )( 5)4 also requires the investigating Board
agent to dismiss a charge where the allegations are properly deferred to binding arbitration.
The Board agent's dismissal of the instant charge was based solely upon her conclusion
that the charge must be deferred to arbitration under Lake Elsinore. 	She found that because
transferring work performed by Brand Inspectors out of the bargaining unit was not included in
the parties' contract and was unilaterally done, the dispute as to whether the State has made a
change in policy which is subject to bargaining is subject to arbitration under Article 20.1.B.
Deferral to Arbitration - Lake Elsinore
Lake Elsinore was erroneously decided. 	In overruling Dry Creek Joint Elementary
School District (1980) PERB Order No. Ad-81a (Dry Creek) and its progeny, the Board
compared the statutory framework of EERA to the National Labor Relations Act (NLRA)5 and
3 EERA is codified at Government Code section 3540 et seq.
4 PERB's regulations are codified at California Code of Regulations, title 8,
section 31001 et seq. PERB's regulations and the statutes administered by the Board may be
found at www.perb.ca.gov.
5 29 USC section 151 et seq.
5

concluded that EERA section 3541.5 did not "essentially codify" the National Labor Relations
Board (NLRB) pre-arbitration policy. 6
Several portions of the statute were not considered in the Board's analysis in Lake
Elsinore. The express words of these sections are fatal to the validity of the Board's
conclusions in that case. Section 3541.5 did essentially codify the NLRB's deferral policy as
articulated in Collyer Insulated Wire (1971) 192 NLRB 837 [77 LRRM 1931] (Collyer).
A return in part to the Board's Dry Creek pre-arbitration deferral policy is mandated by EERA
section 3541.5.7
Below is the statutory language from EERA that concerns the pre-arbitration deferral
issue. 8 Underlined are four portions of the statute which were not addressed by the Board in
Lake Elsinore. EERA section 3541.5 provides, in pertinent part:
The initial determination as to whether the charges of unfair
practices are justified, and, if so, what remedy is necessary to
effectuate the purposes of this chapter, shall be a matter within
the exclusive jurisdiction of the board. Procedures for
investigating, hearing, and deciding these cases shall be devised
and promulgated by the board and shall include all of the
following:
6 Although Lake Elsinore has been the Board's rule since 1987 -- that doesn't make it
correct. The Board notes that "It is an elementary tenet of administrative law that an agency
must either conform to its own precedents or explain its departure from them." (International
Union (UAW) v. NLRB (D.C. Cir. 1972) 459 F.2d 1329, 1341 [79 LRRM 2332].) It is
unfortunate that the explanation for the "departure" is left for this decision. There is no doubt
that the departure from precedent occurred when the Board drafted Lake Elsinore.
7 At the time Dry Creek was decided, the Board treated deferral as an affirmative
defense which could be waived. This issue is not squarely before the Board and the Board
therefore does not overrule the portion of Lake Elsinore which discusses the jurisdictional
nature of Section 3541.5.
8 The present case before the Board concerns the Dills Act. Dills Act section 3514.5(a)
contains language identical to EERA 3541.5(a). The Board's rule in Lake Elsinore was
developed under EERA, but is applicable to the Dills Act because of the identical language of
the two sections.
6

(a) Any employee, employee organization, or employer shall
have the right to file an unfair practice charge, except that the
board shall not do either of the following:
(2) Issue a complaint against conduct also prohibited by the
provisions of the agreement between the parties until the
grievance machinery of the agreement, if it exists and covers the
matter at issue, has been exhausted, either by settlement or
binding arbitration. However, when the charging party
demonstrates that resort to contract grievance procedure would be
futile, exhaustion shall not be necessary. The board shall have
discretionary jurisdiction to review the settlement or arbitration
award reached pursuant to the grievance machinery solely for the
purpose of determining whether it is repugnant to the purposes of
this chapter. If the board finds that the settlement or arbitration
award is repugnant to the purposes of this chapter, it shall issue a
complaint on the basis of a timely filed charge, and hear and
decide the case on the merits. Otherwise, it shall dismiss the
charge. The board shall, in determining whether the charge was
timely filed, consider the six-month limitation set forth in this
subdivision to have been tolled during the time it took the
charging party to exhaust the grievance machinery.
(b) The board shall not have the authority to enforce agreements
between the parties, and shall not issue a complaint on any charge
based on alleged violation of any agreement that would not also
constitute an unfair practice under this chapter.
(Emphasis added.)
Clearly, the section read in its entirety contemplates a decision on the merits, not the "deferral
to a brick wall" policy promulgated in Lake Elsinore. As evidenced by the underlined sections,
the legislation contemplates a charging party having a forum either in an arbitration or in a
hearing before PERB.
EERA section 3541.5(a)(2) prevents PERB from issuing a complaint against conduct
also prohibited by the provisions of an agreement until the grievance machinery is exhausted
"either by settlement or arbitration." If a decision is not reached on the merits, it is not an
7

arbitration of the dispute. The bar on PERB issuing a complaint on a matter also prohibited by
the contract is not present if the grievance machinery will not result in a binding arbitration.
Under EERA section 3541(a)(2), the Board shall not defer when the charging party
demonstrates that resort to contract grievance procedure would be "futile." The dictionary
defines "futile" as "having no useful result; ineffectual; vain." (The American Heritage Diet.,
New College Edition (1980).) Deferring to a contractual grievance procedure where the
employer can assert a procedural defense of untimeliness as justification for refusing to
participate in an arbitration on the merits of the dispute renders the grievance procedure futile.
What could be less useful than filing an untimely grievance which will not generate a response
on the merits?
Futility has been recognized by the Board as a legitimate reason not to defer a case. In
State of California (Department of Parks and Recreation) (1995) PERB Decision No. 1125-S,
the Board found:
The clear intent of Section 3514.5(a) is that this Board defers to
the contractual resolution of disputes where such is available, and
falls within the parameters of that section. Also clear is the
Legislature's intent that when such resolution is not available, and
resort to it would be futile, PERB is to issue a complaint and
resolve the matter. [9]
Application of the Lake Elsinore rule frequently resulted in cases being dismissed and
deferred to arbitration where there was little if any likelihood of the case being heard by an
arbitrator on its merits. This resulted from the fact that a charge would be dismissed and
deferred without any requirement that the respondent employer waive its contract-based
procedural defenses to the grievance. After the charge was dismissed, a charging party which
9 Futility was demonstrated in this case by charging party employees who were unable
to arbitrate their dispute because their union would not take the case to arbitration.
8

then filed its grievance and attempted to pursue it to arbitration was met with contract-based
defenses such as the grievance statute
of
limitations. As a result, the dispute was never heard
on its merits. Such a situation demonstrates futility.
The Board in Lake Elsinore correctly pointed out differences between BERA and the
NLRA. It is true that there is no statutory proscription or deferral provision under the NLRA.
Although the NLRA does not contain a statutory deferral provision, such a policy has
developed through decisions
of
the NLRB.
The NLRB defers to grievance-arbitration machinery
by
requiring its exhaustion when
an unfair practice allegation is also covered by the parties collective bargaining agreement.
(Collyer.) This deferral occurs under Collyer only when all parties indicate a willingness to
arbitrate. The NLRB refuses to defer where the employer is not willing to waive the
procedural defense that a grievance was not timely filed. 	(See e.g., Johnson-Bateman Co.
(1989) 295 NLRB 180 [131 LRRM 1393]; Hotel Roanoke (1989) 293 NLRB 182 [132 LRRM
1229]; Southern Florida Hotel & Motel Association (1979) 245 NLRB 561 [102 LRRM 1578];
Pilot Freight Carriers, Inc. (1976) 224 NLRB 341 [92 LRRM 1338].)
The question before the Board is whether Section 3541.5 codifies Collyer or whether it
adopts a different standard. The Board's Dry Creek decision found Section 3541.5 did codify
Collyer. The Board's Lake Elsinore decision found it did not, with the result that
if
the
grievance machinery covers a matter at issue, PERB must defer, even
if
the matter will not be
decided on the merits. The most reasonable reading
of
Section 3541.5 is that it does reflect the
policy set forth in Collyer. In short, the Board's decision in Dry Creek must have been correct
or Section 3541.5 would look substantially different than it does.
9

The key transitory sentence in the Lake Elsinore reads:
Unlike the NLRA, under EERA, where a contract provides for
binding grievance arbitration, it is elevated to a basic,
fundamental and required component
of
the collective bargaining
process.
This sentence bridges two thoughts providing: (1) "the NLRB guidelines are different
from EERA" and, (2) "the Legislature did not essentially codify Collyer." This Board
speculates that this transition sentence means that under EERA, the grievance-machinery is the
exclusive means to resolve a dispute covered
by
an MOU, therefore even
if
a grievant has
missed the timelines, that grievant cannot bring a pre-arbitration unfair practice charge. 	This is
the essence
of
the holding in Lake Elsinore. However,
if
the Legislature meant to say this, it
would have said in Section 3541.5, PERB is prevented "from issuing a complaint against
conduct also prohibited by the provisions
of
an agreement" followed
by
an exception for post-
arbitration review. The futility exception would be absent.
Nothing in EERA or the Dills Act evidences the Legislature's intent to shorten PERB's
statute
of
limitations for alleged violations from the statutory six months contained in each act
to the time limits contained in the parties' collective bargaining agreement grievance
machinery. In the case
of
the State Bargaining Unit 7 contract, the statute
of
limitations to
contest conduct constituting both an unfair practice and a contractual violation would
be
shortened from the statutory six months contained in the Dills Act to 21 days contained in the
State Bargaining Unit 7 contract.
The Board in Lake Elsinore stated that "the Legislature did not 'essentially codify' the
Collyer requirements" and that there is "absent even the suggestion in the language
of
Section 3541.5, any other provision in EERA, or in its legislative history of an intent
of
the
Legislature to codify Collyer." (Lake Elsinore, at p. 31.) We disagree.
10

EERA is in the main derived from the NLRA. The following excerpt from the
California Supreme Court describes, in part, the origin of EERA:
In 1972, following the first major state employee strike, the
Legislature created the Assembly Advisory Council on Public
Employee Relations, chaired by UCLA Professor Benjamin
Aaron, to formulate recommendations 'for establishing an
appropriate framework within which disputes can be settled
between public jurisdictions and their employees.' (Assem. Res.
No. 51 (1972 Reg. Sess).) In its 1973 report the Advisory
Council recommended the enactment of a comprehensive state
law, modeled on the National Labor Relations Act, which would
afford formal collective bargaining rights to all public employees.
The Legislature, however, was unable to agree on a
comprehensive bill covering all public employees and decided
instead to draft separate collective bargaining statutes directed to
the specific needs and problems of different categories of public
entities. In line with this approach, the Legislature in 1975 first
enacted the Educational Employment Relations Act (EERA)
(Stats 1975, ch. 961, $ 2, p. 2247, codified in $ 3540 et seq.);
EERA repealed the Winton Act, established formal negotiating
rights for public school employees, and created the Educational
Employment Relations Board, an expert, quasi-judicial
administrative agency modeled after the National Labor Relations
Board, to enforce the act.
(Pacific Legal Foundation v. Brown (1981) 29 Cal.3d 168 [172
Cal.Rptr. 487]; emphasis added.)
The "Aaron Commission" report (Report) described above by the Supreme Court in its
entirety supports the proposition that the Legislature intended to follow the NLRA in many
areas. The introduction provides that:
Although recognizing that there are important differences between
the public and the private sectors, the Advisory Council has
concluded that there are equally important similarities. It has not
hesitated, therefore, to recommend that certain practices and
procedures under the National Labor Relations Act, which have
been tested for almost 40 years, be incorporated in a proposed new
statute covering employer-employee relations in the government
service in this State, included in this Report as Appendix A.
(Cal. State Assem. Advisory Council on Pub. Emp. Rel. (1973)
pp. 3-4.)
11
EERA is in the main derived from the NLRA. The following excerpt from the
California Supreme Court describes, in part, the origin
of
EERA:
In 1972, following the first major state employee strike, the
Legislature created the Assembly Advisory Council on Public
Employee Relations, chaired by UCLA Professor Benjamin
Aaron, to formulate recommendations 'for establishing an
appropriate framework within which disputes can be settled
between public jurisdictions and their employees.' (Assem. Res.
No.
51
(1972 Reg. Sess).) In its 1973 report the Advisory
Council recommended the enactment
of
a comprehensive state
law, modeled on the National Labor Relations Act, which would
afford formal collective bargaining rights to all public employees.
The Legislature, however, was unable to agree on a
comprehensive bill covering all public employees and decided
instead to draft separate collective bargaining statutes directed to
the specific needs and problems
of
different categories
of
public
entities. In line with this approach, the Legislature in 1975 first
enacted the Educational Employment Relations Act (EERA)
(Stats 1975, ch. 961, § 2, p. 2247, codified
in§
3540 et seq.);
EERA repealed the Winton Act, established formal negotiating
rights for public school employees, and created the Educational
Employment Relations Board, an expert, quasi-judicial
administrative agency modeled after the National Labor Relations
Board, to enforce the act.
(Pacific Legal Foundation v. Brown (1981) 29 Cal.3d 168 [172
Cal.Rptr. 487]; emphasis added.)
The "Aaron Commission" report (Report) described above by the Supreme Court in its
entirety supports the proposition that the Legislature intended to follow the NLRA in
many
areas. 	The introduction provides that:
Although recognizing that there are important differences between
the public and the private sectors, the Advisory Council has
concluded that there are equally important similarities. It has not
hesitated, therefore, to recommend that certain practices and
procedures under the National Labor Relations Act, which have
been tested for almost 40 years, be incorporated in a proposed new
statute covering employer-employee relations in the government
service in this State, included in this Report as Appendix A.
(Cal. State Assem. Advisory Council on Pub. Emp. Rel. (1973)
pp. 3-4.)
11

The Report reflects a preference that disputes that are both arguable violations
of
the
statute and
of
a collective bargaining agreement be resolved through the agreement's grievance
machinery. 	One exception to this policy was
if
resort to the grievance procedure would
be
futile:
For example,
if
an employee can show that the exclusive
bargaining agent is unable or unwilling to prosecute the grievance
fairly or adequately, the employee should not be required to
exhaust the contract procedures before filing an unfair practice
charge with the Board.
In all other cases, however, in which the act complained
of
is both
a contract violation and an unfair practice, we recommend that
if
the collective agreement also includes a grievance procedure,
under which a grievance based on the alleged unfair practice can
be finally resolved, the Board should be forbidden to issue a
complaint based on such
an
unfair practice unless and until the
charging party exhausts the procedures
of
the collective
agreement.
(Cal. State Assem. Advisory Council on Pub. Emp. Rel. (1973)
pp. 52-53; emphasis added.)
In 1978, Reginald Alleyne, Professor
of
Law, UCLA, and chairperson
of
this Board's
predecessor, the EERB, commented specifically upon the origin
of
Section 3541.5(a) in a
symposium piece published in the Santa Clara Law Review:
Where the NLRA is silent and decisions
of
the NLRB and the
courts provide judicial standards not found in the text
of
the
NLRA, the California Legislature has in some instances adopted
the non-statutory decisional law fashioned by the NLRB.[ 10]
(Alleyne, A Symposium Introduction: The Special Value
of
Settlements in Educational Employment Relations Act
Proceedings (1978) 18 Santa Clara L.Rev. 853, 856.)
10 "The NLRB defers to grievance-arbitration procedures by requiring their
exhaustion when an unfair practice allegation is also covered by the terms of a collective
bargaining agreement. [Collyer.] The policy has no express basis in the NLRA.
	...
The
EERA contains what might be described as a statutory Collyer doctrine. 	[See EERA
sec. 3541.5(a)] (West Supp. 1978)."
12

Review
of
the language
ofEERA
Section 3541.5(a) and the legislative history makes it
clear the Legislature intended to codify the NLRB's pre-arbitration deferral policy as
articulated in Collyer. On that basis Lake Elsinore is incorrect and must be overruled. This
overruling is based on the Dills Act dispute before us and therefore based on Dills Act
Section 3514.5. This overruling does no harm to the preference which exists in California that
disputes be resolved through the parties' mutually agreed upon grievance arbitration
procedures. It merely ensures a forum for those disputes also constituting an unfair practice
if
the employer is unwilling to waive procedural defenses in the parties' contract and arbitrate
disputes. As discussed above, this ruling appropriately returns PERB decisional law back into
conformance with the NLRB's policy and decisions.
Does the Instant Charge State a Prima Facie Case?
Under the scope and definition
of
the series section, SPB's class specification indicates
that Agricultural Technicians perform "hide and brand inspection" and "livestock
identification."
	If
the SPB class specification ended there, the Board would dismiss the charge
based upon the "overlapping duties" test discussed in Eureka City Schools (1985) PERB
Decision No. 481 (Eureka). However, under the definition
of
series section, the class
specification reads that incumbents "assist in hide and brand inspection work and livestock
identification." (Emphasis added.) As the word "assist" modifies these duties, further
investigation
of
the charge is warranted.
The Board agent did not dismiss the charge based upon Eureka and the "overlapping
duties" test. 	She dismissed the charge based solely upon Lake Elsinore. Accordingly, it is
appropriate to remand for further investigation of CAUSE's allegation that the State has
transferred the full range of Brand Inspector duties out of the bargaining unit.
13

As discussed above, it is uncertain whether the charge states a prima facie case. The
Board agent can dismiss the complaint if she determines through investigation that a prima
facie case has not been made. If she finds a prima facie case has been made, she can then
determine whether the State is willing to proceed to arbitration and waive any contractual time
limits or other procedural defenses for filing a grievance under the State Bargaining Unit 7
agreement.
ORDER
The Board REVERSES the Board agent's dismissal of the unfair practice charge in
Case No. SA-CE-1291-S and REMANDS the case to the PERB General Counsel's office for
further investigation and processing consistent with this Decision.
Members Amador and Whitehead joined in this Decision.
14