Decision 1516S – State of California (Department of Personnel Administration)
SA-CE-1349-S
Decision Date: April 7, 2003
Decision Type: PERB Decision
Description: PECG alleged that DPA’s director made two statements to the press disavowing a tentative agreement on contracting out issues in violation of the parties’ ground rules. PECG also alleged that the Department of Finance’s May 2002 budget revision for Caltrans’ capital outlay budget had the same effect. PECG further contends that these all comprised a per se violation of Dills Act Section 3519(c).
Disposition: The Board dismissed the charge. Using a totality of circumstances test, the Board agent found that the state did not violate the Dills Act in breaching the parties’ ground rules by its alleged failure to support the parties’ tentative agreement.
Perc Vol: 27
Perc Index: 52
Decision Headnotes
605.01000 – Outright Refusal to Bargain
Per se test, for establishing that a party bargained in bad faith, is appropriate to use for outright refusal to bargain or a unilateral change. Not the case here where the State’s comments to press simply responded to concerns expressed by Assemblyman Cox and the Legislative Counsel over constitutionality of contracting-out provision, and the Department of Finance’s (DOF) May budget revisions were produced without any showing of the DOF’s knowledge of the tentative agreement. In this case, the State’s response to a legislator’s questions that it would “take another look at” the constitutionality of a provision of the MOU does not, by itself, repudiate the tentative agreement. On that basis, this case can be distinguished from Placerville Union School District (1978) PERB Decision No. 69 and Kern High School District (1998) PERB Decision No. 1265 which both involved blatant repudiation of tentative agreements. Nor do the statements “torpedo” the agreement as prohibited by Alhambra City and High School Districts (1986) PERB Decision No. 560.
606.08000 – Conduct Outside of Negotiations; Prior UPs
Per se test, for establishing that a party bargained in bad faith, is appropriate to use for outright refusal to bargain or a unilateral change. Not the case here where the State’s comments to press simply responded to concerns expressed by Assemblyman Cox and the Legislative Counsel over constitutionality of contracting-out provision, and the Department of Finance’s (DOF) May budget revisions were produced without any showing of the DOF’s knowledge of the tentative agreement. In this case, the State’s response to a legislator’s questions that it would “take another look at” the constitutionality of a provision of the MOU does not, by itself, repudiate the tentative agreement. On that basis, this case can be distinguished from Placerville Union School District (1978) PERB Decision No. 69 and Kern High School District (1998) PERB Decision No. 1265 which both involved blatant repudiation of tentative agreements. Nor do the statements “torpedo” the agreement as prohibited by Alhambra City and High School Districts (1986) PERB Decision No. 560.
601.01000 – In General, Per Se and Totality of Conduct; Prima Facie Case
Per se test, for establishing that a party bargained in bad faith, is appropriate to use for outright refusal to bargain or a unilateral change. Not the case here where the State’s comments to press simply responded to concerns expressed by Assemblyman Cox and the Legislative Counsel over constitutionality of contracting-out provision, and the Department of Finance’s (DOF) May budget revisions were produced without any showing of the DOF’s knowledge of the tentative agreement. Board agent, therefore, properly applied a totality of circumstances test to the allegations in this case.
606.07000 – Inconsistent Position Taken; W/ds or Renege on Tentative Agreement
PECG did not provide sufficient evidence of surface bargaining because the State’s challenged responses were in answer to legislative concerns and PECG made no showing that the Department of Finance was aware of provisions of the parties’ tentative agreement. Since repudiation of an agreement on a single issue is insufficient by itself to show bad faith and reneging on ground rules is only one indicator of bad faith, the union did not establish a violation by the State with the single allegation of reneging on the ground rules by its alleged lack of support for the tentative agreement. Per se test, for establishing that a party bargained in bad faith, is appropriate to use for outright refusal to bargain or a unilateral change. Not the case here where the State’s comments to press simply responded to concerns expressed by Assemblyman Cox and the Legislative Counsel over constitutionality of contracting-out provision, and the Department of Finance’s (DOF) May budget revisions were produced without any showing of the DOF’s knowledge of the tentative agreement. In this case, the State’s response to a legislator’s questions that it would “take another look at” the constitutionality of a provision of the MOU does not, by itself, repudiate the tentative agreement. On that basis, this case can be distinguished from Placerville Union School District (1978) PERB Decision No. 69 and Kern High School District (1998) PERB Decision No. 1265 which both involved blatant repudiation of tentative agreements. Nor do the statements “torpedo” the agreement as prohibited by Alhambra City and High School Districts (1986) PERB Decision No. 560.