State of California, Department of Forestry (California District of Forestry Employees Association) (PERB 0119S)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
CALIFORNIA DEPARTMENT OF FORESTRY
EMPLOYEES ASSOCIATION, 	Case No. S-CE-4-S
Charging Party, (78-79)
v . 	PERB Decision No. 119-s
STATE OF CALIFORNIA, DEPARTMENT OF
FORESTRY, 	March 25, 1980
Respondent.
Appearances: Ronald Yank and Russell L. Richeda, Attorneys
(Carroll, Burdick & McDonough) for California Department of
Forestry Employees Association; and Barbara Stuart, Assistant
Chief Counsel, Governor's Office of Employee Relations, for
State of California.
Before: Gluck, Chairperson; Gonzales and Moore, Members.
DECISION
The California Department of Forestry Employees Association
(hereafter CDFEA) appeals from a Public Employment Relations
Board (hereafter PERB or Board) hearing officer's order
dismissing with leave to amend its unfair practice charge
against the State of California.
For the reasons discussed below, the Board itself reverses,
in part, and affirms, in part, the decision of the hearing	
part,
	decision 	the 	hearing
officer
STATE
	OF
	CALIFORNIA
DECISION
	OF 	THE
PUBLIC
	EMPLOYMENT
	RELATIONS
	BOARD
CALIFORNIA
	DEPARTMENT 	OF
	FORESTRYEMPLOYEES
	ASSOCIATION,
Charging
	Party,
v.
STATE
	OF
	CALIFORNIA,
	DEPARTMENT 	OF
FORESTRY,
Respondent.
)
)	
Case
	No.
	S-CE-4-S
(78-79)
PERB
	Decision
	No.
	119-S
March 	25, 	1980
)
)
)
)
)
)
)
)
)
_____________________ )
~ppearances:	
Ronald
	Yank 	and
	Russell
	L.
	Richeda,
	Attorneys
(Carroll,
	Burdick	
& McDonough)
	for
	California
	Department
	of
Forestry
	Employees
	Association;
	and
	Barbara
	Stuart, 	Assistant
Chief 	Counsel, 	Governor's
	Office 	of
	Employee
	Relations, 	for
State
	of
	California.
Before:
	Gluck,
	Chairpersont
	Gonzales
	and 	Moore, 	Members.
DECISION
The
	California
	Department
	of 	Forestry
	Employees
	Association
(hereafter
	CDFEA)
	appeals
	from 	a
	Public
	Employment
	Relations
Board
	{hereafter
	PERB
	or
	Board)
	hearing
	officer's
	order
dismissing 	with 	leave 	to
	amend
	its
	unfair 	practice
	charge
against
	the
	State 	of 	California.
For
	the 	reasons 	discussed
	below,
	the
	Board
	itself
	reverses,
in
	part,
	and
	affirms,
officer.	
.
FACTUAL SUMMARY	
FACTUAL
	SUMMARY
In May, 1978, the Department of Forestry amended its	
In
	May,
	78, 	Department
	Forestry
	amended
	its
departmental Manual of Instructions for personnel by adding a	
departmental
	Manual
	of 	Instructions 	for 	personnel
	by 	adding 	a

provision 	generally directing managers and supervisors to
avoid participating in or expressing a preference for any
employee organization competing to represent nonsupervisory
The added provision read as follows: (emphasis in
original)
Pre-election Conduct
During the election period, managers and
supervisors should exercise care to avoid
committing unfair practices. In addition to
the guidelines which have been outlined in
the Unfair Labor Practices section,
managers/supervisors should give attention
to the following:
A. 	Do not support one organization in preference to
another or take any advocacy role in the election.
B. 	Avoid the appearance of supporting a particular
organization through bumper stickers or other
means .
C. 	Do not go into the polling area during elections
unless authorized to do so.
D. 	Avoid criticism of any employee organization,
verbal or written.
E. 	Do not attend any rank and file employee
organization meetings.
F 	Do not monitor who attends employee organization
meetings.
G. 	Assure that any restrictions (time, access, etc. )
placed on organizational representatives are
reasonable and equitable and based upon legitimate
management needs.
H. 	Afford all organizations fair and equitable
treatment.
2
provision1 	generally 	directing 	managers 	and 	supervisors 	to
avoid 	participating 	in 	or 	expressing 	a 	preference 	for 	any
employee 	organization 	competing 	to 	represent 	nonsupervisory
lThe 	added 	provision 	read 	as 	follows: 	(emphasis 	in
original)
Pre-election 	Conduct
2
During 	the 	election 	period, 	managers 	and
supervisors 	should 	exercise 	care 	to 	avoid
committing 	unfair 	practices. 	In 	addition 	to
the 	guidelines 	which 	have 	been 	outlined 	in
the 	Unfair 	Labor 	Practices 	section,
managers/supervisors 	should 	give 	attention
to 	the 	following:
A. 	Do 	not 	support 	one 	organization 	in 	preference 	to
another 	or 	take 	any 	advocacy 	role 	in 	the 	election.
B. 	Avoid 	the 	appearance 	of 	supporting 	a 	particular
organization 	through 	bumper 	stickers 	or 	other
means.
C. 	Do 	not 	go 	into 	the 	polling 	area 	during 	elections
unless 	authorized 	to 	do 	so.
D. 	Avoid 	criticism of 	any 	employee 	organization,
verbal 	or 	written.
E. 	Do 	not 	attend 	any 	rank 	and 	file 	employee
organization 	meetings.
F. 	Do 	not 	monitor 	who 	attends 	employee 	organization
meetings.
G. 	Assure 	that 	any 	restrictions 	(time, 	access, 	etc.)
placed 	on 	organizational 	representatives 	are
reasonable 	and 	equitable 	and 	based 	upon 	legitimate
management 	needs.
H. 	Afford 	all 	organizations 	ir 	and 	equitable
treatment.

employees under the State Employer-Employee Relations Act
(hereafter SEERA) . 2 CDFEA filed an unfair practice charge
alleging that the policy curtails the constitutional and SEERA
rights of expression and association of supervisors, 3
deprives rank and file employees of their right to
communicate with supervisors in order to learn the supervisors'
(Footnote 1 con't.)
I. 	Continue to counsel or discipline employees for
job-related reasons.
J . 	Cooperate fully with agents of PERB. Section 3514
of SEERA states:
"Any person who shall willfully resist, prevent,
impede or interfere with any member of the board,
or any of its agents, in the performance of duties
pursuant to this chapter, shall be guilty of a
misdemeanor, and, upon conviction thereof, shall
be sentenced to pay a fine of not more that one
thousand dollars ($1,000) ."
2The SEERA is codified at Government Code Section 3512 et
seq. 	All further section references are to the Government Code
unless otherwise indicated.
3Section 3522.1 defines "supervisory employee" to mean:
any individual, regardless of the job
description or title, having authority, in
the interest of the employer, to hire,
transfer, suspend, lay off, recall, promote,
discharge, assign, reward, or discipline
other employees, or responsibility to direct
them, or to adjust their grievances, or
effectively to recommend such action, if, in
connection with the foregoing, the exercise
of such authority is not of a merely routine
or clerical nature, but requires the use of
independent judgment. Employees whose
duties are substantially similar to those of
their subordinates shall not be considered
to be supervisory employees.
4The term "rank and file" as used in this decision
includes those persons covered by the definition of "state
employee" contained in section 3513 (c) .
employees 	under 	the 	State 	Employer-Employee 	Relations 	Act
(hereafter 	SEERA).2 	CDFEA 	filed 	an 	unfair 	practice 	charge
alleging 	that 	the 	policy 	curtails 	the 	constitutional 	and 	SEERA
rights 	of 	expression 	and 	association 	of 	supervisors,3
deprives 	rank 	and 	file4 	employees 	of 	their 	right 	to
communicate 	with 	supervisors 	in 	order 	to 	learn 	the 	supervisors'
(Footnote 	1 	con't.)
I. 	Continue 	to 	counsel 	or 	discipline 	employees 	for
job-related 	reasons.
J. 	Cooperate 	fully 	with 	agents 	of 	PERB. 	Section 	3514
of 	SEERA 	states:
"Any 	person 	who 	shall 	willfully 	resist, 	prevent,
impede 	or 	interfere 	with 	any 	member 	of 	the 	board,
or 	any 	of 	its 	agents, 	in 	the 	performance 	of 	duties
pursuant 	to 	this 	chapter, 	shall 	be 	guilty 	of 	a
misdemeanor, 	and, 	upon 	conviction 	thereof, 	shall
be 	sentenced 	to 	pay 	a 	fine 	of 	not 	more 	that 	one
thousand 	dollars 	($1,000) ."
2The 	SEERA 	is 	codified 	at 	Government 	Code 	Section 	3512 	et
seq. 	All 	further 	section 	references 	are 	to 	the 	Government 	Code
unless 	otherwise 	indicated.
3section 	3522.1 	defines 	"supervisory 	employee" 	to 	mean:
... 	any 	individual, 	regardless 	of 	the 	job
description 	or 	title, 	having 	authority, 	in
the 	interest 	of 	the 	employer, 	to 	hire,
transfer, 	suspend, 	lay 	off, 	recall, 	promote,
discharge, 	assign, 	reward, 	or 	discipline
other 	employees, 	or 	responsibility 	to 	direct
them, 	or 	to 	adjust 	their 	grievances, 	or
effectively 	to 	recommend 	such 	action, 	if, 	in
connection 	with 	the 	foregoing, 	the 	exercise
of 	such 	authority 	is 	not 	of 	a 	merely 	routine
or 	clerical 	nature, 	but 	requires 	the 	use
independent 	judgment. 	Employees 	whose
duties 	are 	substantially 	similar 	to 	those 	of
their 	subordinates 	shall 	not 	be 	considered
to 	be 	supervisory 	employees.
4The 	term 	"rank 	and 	file" 	as 	used 	in 	this 	decision
includes 	those 	persons 	covered 	by 	the 	definition 	of 	"state
employee" 	contained 	in 	section 	3513(c).
3

preferences and rationales concerning employee organizations,
and harms CDFEA by depriving it of an important means of
demonstrating the range and nature of its membership.
In a separate case (S-CE-5-S) CDFEA challenged the same
policy insofar as it affected employees whose designation as
"supervisors" was being contested by CDFEA. In that case a
settlement agreement was reached between the parties whereby
CDFEA agreed to withdraw its unfair practice charge without
prejudice in consideration for the adoption of certain
amendments by the department revising the policy. The
The amendments revised the section of the policy set
forth in footnote 1 by including a statement in the first
paragraph thereof limiting the application of the policy to
managers and supervisors while on the job. An additional
provision was added to another section of the policy reading as
follows :
The state acts through its managers and
supervisors. Thus, the State may be charged
with an unfair practice due to the conduct
of a manager or supervisor. On the other
hand, SEERA gives supervisors the right to
be members of employee organizations.
Because of their dual role, supervisors'
participation in employee organizations must
be limited by their duty to protect the
State from unfair practices. SEERA
specifically provides that supervisors shall
not participate in the handling of
grievances or in meet and confer sessions on
behalf of nonsupervisory employees, and that
supervisors shall not vote to ratify or
reject agreements reached on behalf of
nonsupervisory employees. Further, under
SEERA a supervisor shall not use his/her
position or authority as a supervisor,
either on or off the job, to dominate or
interfere with the organizational activities
of a rank and file employee or employee
organization. When participating in rank
and file employee organization activities,
supervisors should make it clear that their
participation is not as an agent or
representative of management.
preferences
	and
	rationales
	concerning
	employee
	organizations,
and
	harms
	CDFEA
	by
	depriving
	it
	of
	an
	important
	means
	of
demonstrating 	the
	range
	and
	nature 	of
	its
	membership.
In
	a
	separate
	case
	(S-CE-5-S)
	CDFEA
	challenged 	the
	same
policy 	insofar
	as
	it
	affected
	employees
	whose
	designation
	as
"supervisors"
	was
	being
	contested
	by
	CDFEA.
	In
	that
	case
	a
settlement
	agreement
	was
	reached
	between
	the
	parties
	whereby
CDFEA
	agreed
	to
	withdraw
	its
	unfair
	practice
	charge
	without
prejudice
	in
	consideration
	for
	the 	adoption
	of
	certain
amendments 	by
	the 	department
	revising
	the
	policy.5	
The
5The 	amendments
	revised 	the
	section 	of 	the 	policy
	set
forth
	in
	footnote
	1 	by
	including
	a
	statement 	in
	the
	first
paragraph
	thereof 	limiting
	the
	application 	of
	the 	policy 	to
managers
	and
	supervisors
	while
	on
	the 	job.
	An
	additionalprovision
	was 	added
	to
	another
	section
	of 	the 	policy 	reading 	as
follows:
The
	state
	acts
	through
	its
	managers 	and
supervisors.
	Thus,
	the 	State
	may 	be
	charged
with
	an
	unfair 	practice
	due
	to 	the
	conduct
of
	a 	manager
	or
	supervisor.
	On
	the 	other
hand,
	SEERA
	gives 	supervisors 	the
	right
	to
be 	members
	of
	employee
	organizations.
Because
	of
	their
	dual
	role, 	supervisors'
participation
	in
	employee
	organizations
	must
be
	limited
	by
	their
	duty
	to 	protect
	the
State
	from
	unfair 	practices.
	SEERA
specifically
	provides
	that 	supervisors 	shall
not
	participate
	in 	the 	handling 	of
grievances 	or 	in
	meet 	and
	confer 	sessions
	on
behalf 	of 	nonsupervisory 	employees,
	and
	thatsupervisors 	shall
	not 	vote 	to
	ratify
	or
reject
	agreements 	reached
	on
	behalf 	ofnonsupervisory 	employees.
	Further,
	under
SEERA
	a
	supervisor 	shall
	not 	use
	his/her
position 	or 	authority 	as
	a
	supervisor,
either
	on 	or 	off 	the 	job, 	to 	dominate 	or
interfere
	with 	the 	organizational 	activitiesof
	a 	rank 	and
	file
	employee 	or 	employee
organization.
	When
	participating 	in 	rank
and
	file
	employee 	organization 	activities,supervisors 	should 	make
	it 	clear 	that 	their
participation 	is 	not 	as 	an 	agent 	or
representative 	of 	management.
4

revised policy did not become effective until February 9, 1979,
and thus the question in this case is whether the original
policy violated the SEERA rights of employees or of CDFEA
during the period it was in effect, i.e. , from May 1978 to
February 1979. Because CDFEA does not challenge the revised
policy we intimate no judgment as to its legality.
The hearing officer found that PERB lacks jurisdiction to
resolve through the unfair practice provisions of the SEERA
6Section 3519 reads, in pertinent part, as follows:
It shall be unlawful for the state to:
(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.
(b) Deny to employee organizations rights
guaranteed to them by this chapter.
(d) Dominate or interfere with the formation
or administration of any employee
organization, or contribute financial or
other support to it, or in any way encourage
employees to join any organization in
preference to another.
UT
revised 	policy
	did 	not
	become
	effective 	until
	February 	9,
	1979,
and
	thus 	the
	question 	in
	this
	case
	is
	whether
	the
	original
policy 	violated
	the
	SEERA
	rights
	of
	employees
	or
	of
	CDFEA
during 	the 	period
	it
	was
	in
	effect,
	i.e.,
	from
	May
	1978
	to
February
	1979. 	Because
	CDFEA
	does
	not
	challenge
	the
	revised
policy
	we
	intimate
	no
	judgment
	as
	to
	its
	legality.
The
	hearing
	officer
	found
	that
	PERB
	lacks
	jurisdiction
	to
resolve
	through 	the
	unfair
	practice
	provisions
6
of
	the
	SEERA
6section
	3519
	reads, 	in
	pertinent 	part,
	as 	follows:
It
	shall
	be
	unlawful 	for 	the
	state
	to:
(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.
(b) 	Deny
	to
	employee
	organizations 	rights
guaranteed 	to
	them 	by
	this
	chapter.
. 	. 	. 	. 	. 	. . . . 	. 	. 	. 	. 	. 	. 	.
(d) 	Dominate
	or
	interfere
	with 	the 	formationor
	administration 	of
	any 	employee
organization,
	or
	contribute 	financial
	or
other 	support 	to
	it,
	or 	in
	any 	way
	encourageemployees
	to 	join
	any
	organization 	in
preference 	to 	another.
5

a charge that the policy interfered with the right of
supervisors to form and participate in the activities of
employee organizations in violation of sections 3519 (a) ,
3522. 3, 7 3522.4,8 and 3522.8.9
7section 3522.3 reads as follows:
Supervisory employees shall have the right
to form, join, and participate in the
activities of employee organizations of
their own choosing for the purpose of
representation on on all matters of
supervisory employee-employer relations as
set forth in Section 3522.6. Supervisory
employees also shall have the right to
refuse to join or participate in the
activities of employee organizations and
shall have the right to represent themselves
individually in their employment relations
with the public employer.
8 Section 3522.4 reads as follows:
Employee organizations shall have the right
to represent their supervisory employee
members in their employment relations,
including grievances, with the employer.
Employee organizations may establish
reasonable restrictions regarding who may
join and may make reasonable provisions for
the dismissal of employees from membership.
Nothing in this section shall prohibit any
employee from appearing on his or her own
behalf or through his or her chosen
representative in his or her employment
relations and grievances with the public
employer.
9 section 3522.8 reads as follows:
The state employer and employee
organizations shall not interfere with,
intimidate, restrain, coerce, or
discriminate against supervisory employees
because of their exercise of their rights
under this article.
6
a 	charge 	that 	the 	policy 	interfered 	with 	the 	right 	of
supervisors 	to 	form 	and 	participate 	in 	the 	activities 	of
employee 	organizations 	in 	violation 	of 	sections 	3519(a),
3522.3, 7 	3522.4,8 	and 	3522.8.9
7section 	3522.3 	reads 	as 	follows:
Supervisory 	employees 	shall 	have 	the 	right
to 	form, 	join, 	and 	participate 	in 	the
activities 	of 	employee 	organizations 	of
their 	own 	choosing 	for 	the 	purpose 	of
representation 	on 	on 	all 	matters 	of
supervisory 	employee-employer 	relations 	as
set 	forth 	in 	Section 	3522.6. 	Supervisory
employees 	also 	shall 	have 	the 	right 	to
refuse 	to 	join 	or 	participate 	in 	the
activities 	of 	employee 	organizations 	and
shall 	have 	the 	right 	to 	represent 	themselves
individually 	in 	their 	employment 	relations
with 	the 	public 	employer.
8section 	3522.4 	reads 	as 	follows:
Employee 	organizations 	shall 	have 	the 	right
to 	represent 	their 	supervisory 	employee
members 	in 	their 	employment 	relations,
including 	grievances, 	with 	the 	employer.
Employee 	organizations 	may 	establish
reasonable 	restrictions 	regarding 	who 	may
join 	and 	may 	make 	reasonable 	provisions 	for
the 	dismissal 	of 	employees 	from 	membership.
Nothing 	in 	this 	section 	shall 	prohibit 	any
employee 	from 	appearing 	on 	his 	or 	her 	own
behalf 	or 	through 	his 	or 	her 	chosen
representative 	in 	his 	or 	her 	employment
relations 	and 	grievances 	with 	the 	public
employer.
9section 	3522.8 	reads 	as 	follows:
The 	s 	employer 	and 	employee
organizations 	shall 	not 	interfere 	with,
intimidate, 	restrain, 	coerce, 	or
discriminate 	against 	supervisory 	employees
because 	of 	their 	exercise 	of 	their 	rights
under 	this 	article.
6

The hearing officer also dismissed an allegation that the
policy interfered with the rights of rank and file
employees by depriving them of a traditional channel of
communication for learning the preferences and rationales of
supervisors concerning employee organizations. He reasoned
that while section 3522.3 permits supervisors to belong to
employee organizations of their own choosing, section
10The rights of rank and file employees allegedly
interfered with are those contained in section 3515 which
provides :
Except as otherwise provided by the
Legislature, state employees shall have the
right to form, join, and participate in the
activities of employee organizations of
their own choosing for the purpose of
representation on all matters of
employer-employee relations. 	State
employees also shall have the right to
refuse to join or participate in the
activities of employee organizations, except
that nothing shall preclude the parties from
agreeing to a maintenance of membership
provision, as defined in subdivision (h) of
section 3513, pursuant to a memorandum of
understanding. In any event, state
employees shall have the right to represent
themselves individually in their employment
relations with the state.
J
The 	hearing 	officer 	also 	dismissed 	an 	allegation 	that 	the
policy 	interfered 	with 	the 	rights 	of 	rank 	and 	file
employees10 by 	depriving 	them of 	a 	traditional 	channel 	of
communication 	for 	learning 	the 	preferences 	and 	rationales 	of
supervisors 	concerning 	employee 	organizations. 	He 	reasoned
that 	while 	section 	3522.3 	permits 	supervisors 	to 	belong 	to
employee 	organizations 	of 	their 	own 	choosing, 	section
lOThe 	rights 	of 	rank 	and 	file 	employees 	allegedly
interfered 	with 	are 	those 	contained 	in 	section 	3515 	which
provides:
Except 	as 	otherwise 	provided 	by 	the
Legislature, 	state 	employees 	shall 	have 	the
right 	to 	form, 	join, 	and 	participate 	in 	the
activities 	of 	employee 	organizations 	of
their 	own 	choosing 	for 	the 	purpose 	of
representation 	on 	all 	matters 	of
employer-employee 	relations. 	State
employees 	also 	shall 	have 	the 	right 	to
refuse 	to 	join 	or 	participate 	in 	the
activities 	of 	employee 	organizations, 	except
that 	nothing 	shall 	preclude 	the 	parties 	from
agreeing 	to 	a 	maintenance 	of 	membership
provision, 	as 	defined 	in 	subdivision 	(h) 	of
section 	3513, 	pursuant 	to 	a 	memorandum 	of
understanding. 	In 	any 	event, 	state
employees 	shall 	have 	the 	right 	to 	represent
themselves 	individually 	in 	their 	employment
relations 	with 	the 	state.
7

3522. 211 limits the right of nonsupervisory employees to have
the benefit of participation by supervisors in their
organizational affairs.
With regard to an allegation that by limiting the
participation of supervisors the personnel policy had the
effect of depriving CDFEA of an important means of
demonstrating the range and nature of its membership and in so
1lsection 3522.2 reads as follows:
(a) Supervisory employees shall not
participate in the handling of grievances on
behalf of nonsupervisory employees.
Nonsupervisory employees shall not
participate in the handling of grievances on
behalf of supervisory employees.
(b) Supervisory employees shall not
participate in meet and confer sessions on
behalf of nonsupervisory employees.
Nonsupervisory employees shall not
participate in meet and confer sessions on
behalf of supervisory employees.
The prohibition in subdivisions (a) and
(b) shall not be construed to apply to the
paid staff of an employee organization.
(d) Supervisory employees shall not vote on
questions of ratification or rejection of
memorandums of understanding reached on
behalf of nonsupervisory employees.
CO
3522.211	
limits
	the
	right
	of
	nonsupervisory
	employees
	to
	have
the
	benefit
	of
	participation
	by
	supervisors
	in
	their
organizational
	affairs.
With
	regard
	to
	an
	allegation 	that
	by
	limiting
	the
participation
	of 	supervisors
	the 	personnel
	policy
	had
	the
effect
	of 	depriving
	CDFEA
	of
	an
	important
	means
	of
demonstrating 	the
	range
	and
	nature 	of
	its
	membership
	and
	in
	so
llsection
	3522.2
	reads 	as 	follows:
(a)
	Supervisory
	employees
	shall
	not
participate
	in 	the 	handling 	of 	grievances
	on
behalf 	of
	nonsupervisory
	employees.
Nonsupervisory
	employees
	shall
	not
participate
	in 	the 	handling
	of 	grievances
	on
behalf 	of 	supervisory
	employees.
(b)
	Supervisory
	employees
	shall
	not
participate
	in
	meet 	and
	confer 	sessions
	on
behalf 	of 	nonsupervisory
	employees.
Nonsupervisory
	employees
	shall
	not
participate
	in
	meet
	and
	confer 	sessions
	on
behalf 	of 	supervisory
	employees.
(c) 	The
	prohibition 	in 	subdivisions
	(a) 	and(b)
	shall
	not
	be
	construed 	to
	apply
	to 	the
paid
	staff
	of
	an 	employee
	organization.
(d)
	Supervisory
	employees
	shall
	not 	vote
	on
questions 	of
	ratification
	or
	rejection 	of
memorandums
	of 	understanding 	reached
	on
behalf 	of 	nonsupervisory 	employees.
8

doing infringed upon its section 3515.512 rights in violation
of section 3519 (b) , the hearing officer held that CDFEA has no
right to have supervisory members participate in an organizing
campaign directed at nonsupervisory members.
CDFEA excepts to all of the above determinations by the
hearing officer but not to the hearing officer's decision that
the policy did not have the effect of interfering with the
internal affairs of CDFEA in violation of section 3519 (d) . 	The
latter issue is therefore not before the Board for
consideration.
12section 3515.5 reads as follows:
Employee organizations shall have the right
to represent their members in their
employment relations with the state, except
that once an employee organization is
recognized as the exclusive representative
of an appropriate unit, the recognized
employee organization is the only
organization that may represent that unit in
employment relations with the state.
Employee organizations may establish
reasonable restrictions regarding who may
join and may make reasonable provisions for
the dismissal of individuals from
membership. Nothing in this section shall
prohibit any employee from appearing in his
own behalf in his employment relations with
the state.
9
doing
	infringed
	upon
	its
	section
	3515.512	
rights
	in
	violation
of 	section
	3519(b), 	the 	hearing
	officer
	held
	that
	CDFEA
	has
	no
right
	to
	have
	supervisory
	members
	participate
	in
	an
	organizing
campaign
	directed
	at
	nonsupervisory
	members.
CDFEA
	excepts 	to
	all
	of 	the
	above
	determinations
	by
	the
hearing
	officer
	but 	not
	to
	the 	hearing
	officer's
	decision
	that
the
	policy
	did 	not
	have
	the
	effect
	of
	interfering
	with
	the
internal
	affairs
	of
	CDFEA
	in
	violation
	of 	section
	3519(d).
	The
latter
	issue
	is
	therefore
	not
	before
	the
	Board
	for
consideration.
12section
	3515.5
	reads 	as 	follows:
Employee
	organizations
	shall
	have
	the
	right
to 	represent
	their
	members
	in
	their
employment
	relations
	with 	the
	state,
	except
that
	once
	an 	employee
	organization
	is
recognized 	as 	the 	exclusive 	representativeof
	an
	appropriate
	unit,
	the 	recognized
employee
	organization
	is
	the 	only
organization 	that
	may
	represent
	that 	unit
	in
employment
	relations
	with 	the
	state.
Employee
	organizations
	may
	establish
reasonable
	restrictions
	regarding
	who 	may
join
	and 	may 	make
	reasonable 	provisions 	for
the 	dismissal 	of 	individuals
	from
membership. 	Nothing 	in
	this 	section 	shallprohibit
	any 	employee 	from
	appearing 	in
	his
own
	behalf 	in 	his
	employment
	relations
	with
the
	state.
9

DISCUSSION
Supervisory Employees
We affirm the hearing officer's dismissal of the charge
alleging that the policy had the effect of unlawfully
interfering with the rights of supervisors to form and
participate in the activities of employee organizations in
violation of section 3519 (a) , 3522.3, 3522.4, and 3522.8. In
State of California, Department of Health (1/10/79) PERB
Decision No. 86-S, the Board held that supervisors are not
covered by the unfair practice provisions of section 3519 and
also rejected the argument that PERB was required to enact
other rules to prevent employer interference with supervisors'
rights under SEERA. 	The Board concluded that the statutory
scheme evidenced a legislative intent that supervisors were to
be excluded from PERB's jurisdiction and that any vindication
of supervisors' rights must be through another forum.
Rank and File Employees and the Employee Organization
10
DISCUSSION
Supervisory
	Employees
We
	affirm
	the 	hearing
	officer's
	dismissal 	of
	the 	charge
alleging
	that
	the
	policy
	had
	the
	effect
	of 	unlawfully
interfering
	with 	the
	rights
	of 	supervisors
	to
	form 	and
participate
	in
	the
	activities
	of
	employee
	organizations 	in
violation
	of
	section
	3519 (a) ,
	3522.
3,
	3522.
4,
	and
	3522.
8.
	In
State 	of
	California,
	Department
	of
	Health 	(1/10/79)
	PERB
Decision
	No.
	86-S, 	the
	Board
	held
	that
	supervisors
	are
	not
covered	
by	
the
	unfair
	practice
	provisions 	of
	section
	3519
	and
also 	rejected
	the
	argument
	that
	PERB
	was
	required 	to 	enact
other
	rules
	to 	prevent
	employer
	interference
	with
	supervisors'
rights
	under
	SEERA. 	The
	Board
	concluded
	that
	the
	statutory
scheme
	evidenced
	a
	legislative 	intent 	that
	supervisors
	were
	to
be
	excluded
	from 	PERB's
	jurisdiction
	and
	that
	any
	vindication
of	
supervisors' 	rights
	must 	be
	through 	another
	forum.
Rank
	and
	File
	Employees 	and
	the
	Employee
	Organization
Whether the instant personnel policy's prohibition against
supervisors participation in certain activities adversely
affects rank and file employees in the exercise of their rights
under SEERA is the question to be resolved through the unfair
practice provisions of SEERA.
Whether
	the
	instant
	personnel
	policy's 	prohibition 	against
supervisors'
	ticipat
	in
	certain 	activities 	rsely
affects
	r
	fi
	employees
	the 	exercise 	their
	ri
	ts
under
	SEERA
	is
	the 	question 	to 	resolved 	through 	the
	un
	ir
practice 	isions 	of
	SEERA.
10

As the Board stated in State of California, Department of
Health, supra, at page 7:
. . . An employer's conduct against supervisors
is generally not grounds for an unfair
practice charge. However, if there is a
reasonable inference that the conduct had an
adverse effect on nonsupervisory employees
in the exercise of their rights, an unfair
practice charge will be entertained
vis a vis the nonsupervisory employee.
[Citation. ] In this case, if CSEA can show
that the personnel officer's comments would
have had the effect of restraining, coercing
or interfering with nonsupervisors in the
exercise of their SEERA rights, the unfair
practice process is the proper vehicle for
resolving the dispute.
The hearing officer cited section 3522.2 (fn. 11, supra)
for the proposition that rank and file employees have no right
to the participation by supervisors in their organizational
affairs. Section 3522.2 prohibits supervisors from
participating in the handling of rank and file grievances, from
participating in meet and confer sessions on behalf of
nonsupervisors, and from voting on the ratification or
rejection of memoranda of understanding reached on behalf of
nonsupervisory employees. But it does not have the
all-encompassing prohibitory effect given to it by the hearing
officer.
Even though supervisors may not be included in the same
bargaining unit as rank and file employees under the SEERA,
there is no prohibition against both groups of employees being
members of the same employee organizations. Further, under
11
As
	the
	Board
	stated
	in
	State
	of
	California,
	Department
	of
Health, 	supra,
	at
	page 	7:
••.
An
	employer's
	conduct
	against 	supervisors
is 	generally
	not
	grounds
	for
	an
	unfair
practice
	charge.
	However,
	if
	there
	is
	a
reasonable
	inference
	that
	the
	conduct
	had
	an
adverse
	effect
	on
	nonsupervisory
	employees
in 	the
	exercise 	of
	their 	rights,
	an
	unfair
practice
	charge
	will
	be
	entertained
vis
	a
	vis
	the 	nonsupervisory
	employee.
[Citation.]
	In
	this
	case,
	if
	CSEA
	can
	show
that
	the 	personnel
	officer's
	comments 	would
have
	had
	the
	effect
	of
	restraining,
	coercingor
	interfering
	with 	nonsupervisors 	in 	the
exercise
	of
	their
	SEERA
	rights,
	the
	unfair
practice
	process
	is
	the 	proper
	vehicle
	for
resolving
	the
	dispute.
The
	hearing
	officer 	cited 	section
	3522.2
	(fn.
	11,
	supra)
for 	the
	proposition
	that
	rank
	and
	file
	employees 	have
	no
	right
to 	the
	participation
	by
	supervisors 	in
	their
	organizational
affairs.
	Section
	3522.2
	prohibits
	supervisors
	from
participating
	in 	the 	handling 	of
	rank
	and
	file
	grievances,
	from
participating
	in
	meet 	and
	confer 	sessions
	on
	behalf 	of
nonsupervisors,
	and 	from
	voting
	on
	the
	ratification
	or
rejection
	of
	memoranda
	of 	understanding 	reached
	on
	behalf
	of
nonsupervisory 	employees. 	But
	it
	does 	not
	have
	the
all-encompassing
	prohibitory 	effect
	given 	to
	it
	by
	the 	hearing
officer.
Even 	though
	supervisors
	may
	not
	be
	included 	in 	the
	same
bargaining 	unit
	as 	rank
	and
	file
	employees 	under
	the
	SEERA,
there 	is
	no
	prohibition 	against	
both 	groups
	of
	employees 	being
members
	of 	the
	same 	employee
	organizations. 	Further, 	under
11

current law supervisory employees, unlike managerial and
confidential employees, may hold elective office in an employee
organization that also represents rank and file employees
(sec. 3518.7) . 13
These provisions indicate that the Legislature envisioned a
certain amount of interaction between supervisors and rank and
file employees in their organizational affairs. If the right
of rank and file employees to belong to the same employee
organizations as supervisors and their right to elect
supervisors to offices in those organizations is to have
meaning, they must have the right to freely exchange
information and ideas regarding those organizations with all
members, including supervisors.
Assuming the facts as stated by the charging party to be
true 14 certain portions of this personnel policy would
violate those rights and establish a prima facie case. 	For
example, subdivision (A) of the policy (fn. 1, supra) directs
supervisors not to support one employee organization in
13section 3518.7 reads as follows:
Managerial employees and confidential
employees shall be prohibited from holding
elective office in an employee organization
which also represents "state employees, " as
defined in subdivision (c) of Section 3513.
14San Juan Unified School District (3/10/77) EERB
Decision No. 12.
12
current
	law
	supervisory
	employees,
	unlike
	managerial
	and
confidential
	employees,
	may
	hold
	elective 	office
	in
	an
	employee
organization
	that
	also 	represents
	rank
	and
	file
	employees
(sec.
	3518.
7).
13
These
	provisions 	indicate
	that
	the
	Legislature
	envisioned
	a
certain
	amount
	of
	interaction
	between
	supervisors
	and
	rank
	and
file
	employees
	in
	their
	organizational
	affairs. 	If
	the
	right
of
	rank
	and
	file
	employees
	to
	belong
	to 	the
	same
	employee
organizations
	as
	supervisors
	and
	their 	right
	to
	elect
supervisors 	to
	offices
	in 	those
	organizations
	is
	to
	have
meaning,
	they
	must 	have
	the
	right
	to
	freely
	exchange
information
	and
	ideas 	regarding 	those
	organizations
	with
	all
members,
	including 	supervisors.
Assuming
	the
	facts
	as
	stated
	by
	the 	charging
	party
	to
	be
true
14
certain
	portions 	of
	this
	personnel 	policy
	would
violate
	those
	rights
	and
	establish
	a
	prima
	facie 	case.
	For
example,
	subdivision
	(A)
	of
	the
	policy 	(fn. 	1,
	supra)
	directs
supervisors
	not 	to 	support
	one 	employee
	organization 	in
13section
	3518.7
	reads 	as 	follows:
Managerial 	employees	
and
	confidential
employees	
shall	
be	
prohibited
	from	
holding
elective 	office
	in
	an 	employee
	organization
which
	also 	represents 	"state
	employees," 	as
defined 	in 	subdivision
	(c)
	of 	Section
	3513.
14san 	Juan 	Unified 	School	
District	
(3/10/77)	
EERB
Decision
	No.
	12.
12

preference to another. On its face this provision has the
effect of inhibiting the flow of information between
supervisory and rank and file members of CDFEA. 	This
interferes with rank and file employees in the exercise of
their SEERA rights in violation of section 3519(a) .
The same provision would prevent a supervisory employee who
was an elected officer of CDFEA from fully and effectively
carrying out his or her duties and responsibilities. Because
it restricts the internal organizational activities of the
leadership of CDFEA, the policy has the effect of denying that
organization its right to represent its rank and file members
in their employment relations with the state in violation of
section 3519 (b) . Of course supervisors may not, in their
leadership capacity, engage in those activities prohibited by
section 3522.2, supra.
The right of rank and file employees to the participation
of supervisory members in their employee organizations must be
balanced against the duty of the state employer to protect
itself against unfair practice charges.
Because the state employer must, of necessity, act through
its managers and supervisors it may be held responsible for the
actions of those persons acting within their actual or apparent
authority (See Antelope Valley Community College District
(7/18/79) PERB Decision No. 97) . For this reason, the state
13
preference
	to 	another.
	On
	its
	face
	this
	provision
	has
	the
effect
	of
	inhibiting
	the
	flow
	of
	information
	between
supervisory
	and
	rank
	and
	file
	members
	of
	CDFEA.
	This
interferes
	with
	rank
	and
	file
	employees
	in
	the
	exercise 	of
their
	SEERA
	rights
	in
	violation
	of 	section
	3519(a).
The 	same
	provision
	would
	prevent
	a
	supervisory
	employee
	who
was 	an
	elected
	officer
	of
	CDFEA
	from
	fully
	and
	effectively
carrying 	out
	his
	or 	her
	duties
	and
	responsibilities.
	Because
it
	restricts
	the
	internal
	organizational
	activities
	of
	the
leadership of
	CDFEA,
	the
	policy
	has
	the
	effect
	of
	denying
	that
organization
	its
	right
	to 	represent
	its
	rank
	and
	file
	members
in
	their
	employment
	relations
	with 	the
	state
	in
	violation 	of
section
	3519(b).
	Of
	course
	supervisors
	may
	not, 	in
	their
leadership 	capacity,
	engage
	in 	those
	activities
	prohibited
	by
section
	3522.2,
	supra.
The
	right
	of
	rank
	and
	file
	employees
	to 	the
	participation
of 	supervisory
	members
	in
	their
	employee
	organizations
	must
	be
balanced
	against
	the 	duty 	of 	the
	state
	employer
	to
	protect
itself
	against 	unfair 	practice
	charges.
Because 	the
	state
	employer 	must,
	of 	necessity, 	act
	through
its
	managers	
and	
supervisors
	it	
may 	be	
held 	responsible 	for 	the
actions 	of 	those 	persons 	acting 	within 	their 	actual 	or 	apparent
authority
	(See 	Antelope 	Valley
	Community
	College
	District
(7/18/79)	
PERB
	Decision
	No.
	97).
	For
	this
	reason, 	the	
state
13

employer has a legitimate interest in regulating, within
permissible boundaries, the actions and conduct of its
supervisory employees by restricting supervisors from holding
themselves out as spokespersons for the state while engaged in
organizational activity and by disavowing improper conduct or
action by supervisors to the extent that such activity may be
viewed as authorized by the state employer (Antelope Valley,
supra) .
The personnel policy here being challenged appears to
exceed those boundaries and may restrict the activities of
supervisors so as to unlawfully interfere with rank and file
employees and CDFEA in the exercise of their respective rights
guaranteed by SEERA. We therefore reverse the hearing
officer's dismissal and remand this case to the chief
administrative law judge for hearing.
ORDER
The Public Employment Relations Board ORDERS that the
hearing officer's dismissal of the unfair practice charge of a
violation of sections 3519 (a) and 3519 (b) is reversed; and,
affirms dismissal of the other charge filed herein. 	The unfair
practice charges are remanded to the chief administrative law
judge for hearing.
By : 	Barbara D. Moore
14
employer 	has
	a
	legitimate
	interest
	in
	regulating,
	within
permissible 	boundaries,
	the
	actions
	and
	conduct
	of
	its
supervisory
	employees
	by
	restricting
	supervisors
	from
	holding
themselves
	out
	as 	spokespersons 	for
	the
	state
	while
	engaged
	in
organizational
	activity
	and 	by
	disavowing 	improper
	conduct
	or
action
	by
	supervisors
	to 	the
	extent
	that
	such
	activity
	may
	be
viewed
	as
	authorized
	by
	the
	state
	employer
	(Antelope
	Valley,
supra)
.
The
	personnel
	policy
	here 	being
	challenged
	appears
	to
exceed
	those 	boundaries
	and 	may
	restrict
	the
	activities
	of
supervisors
	so
	as
	to 	unlawfully
	interfere
	with
	rank
	and
	file
employees
	and
	CDFEA
	in 	the
	exercise
	of
	their
	respective
	rights
guaranteed
	by 	SEERA.
	We
	therefore 	reverse
	the 	hearing
officer's
	dismissal
	and 	remand
	this
	case
	to 	the
	chief
administrative
	law
	judge
	for
	hearing.
ORDER
The
	Public
	Employment
	Relations
	Board
	ORDERS
	that
	the
hearing
	officer's
	dismissal 	of 	the
	unfair 	practice
	charge
	of
	a
violation
	of 	sections
	3519(a)
	and
	3519(b)
	is
	reversed; 	and,
affirms 	dismissal 	of
	the 	other 	charge
	filed 	herein.
	The
	unfair
practice
	charges 	are
	remanded
	to 	the
	chief 	administrative
	law
judge 	for 	hearing.
1:ry:
	Barbara
	D. 	Moore 	Harry Gluck, Chairperson)
Raymond J. Gonzales, Member
14

PUBLIC EMPLOYMENT RELATIONS BOARD
OF THE STATE OF CALIFORNIA
CALIFORNIA DEPARTMENT OF FORESTRY
Case No. S-CE-4-S (78-79)
NOTICE OF DISMISSALWITH LEA
VE 	TO
	A.~END
(9/11/78)
Notice is hereby given that the above-captioned unfair
practice charge is dismissed with leave to amend within twenty
(20) calendar days after service of this Notice.
The charge is based on the promulgateon of a personnel
policy by the respondent which sets out guidelines for "managers
and supervisors" to follow during the "election period" in
order to avoid committing unfair practices. 	(The terms quoted
above are not defined in the policy. ) The policy basically
directs managers and supervisors to avoid participating in or
expressing a preference for any employee organization competing
to represent non-supervisory employees under the SEERA. Case
number
applied to employees conceded by CDFEA to be supervisory
("conceded supervisors"). A separate charge, case number
S-CE-5-S, attacks the policy insofar as it affects employees
- 1-
PUBLIC
	EMPLOYMENT
	RELATIONS
	BOARD
OF 	THE
	STATE
	OF
	CALIFORNIA
CALIFORNIA
	DEPARTMENT OF
	FORESTRYEMPLOYEES ASSOCIATION,
Charging
	Party,
v .
STATE OF CALIFORNIA DEPARTMENT
OF
	FORESTRY,
Respondent.
)
)
)
)
)
)
)
)
)
)
)
)
__________________
)
Case
	No.
	S-CE-4-S
	(78-79)
NOTICE
	OF
	DISMISSAL
WITH LEAVE TO AMEND
(9/11/78)
Notice
	is
	hereby 	given
	that
	the 	above-captioned
	unfair
practice
	charge
	is
	dismissed with 	leave 	to
	amend
	within
	twenty
(20)
	calendar
	days
	after
	service 	of
	this
	Notice.
The
	charge
	is
	based
	on
	the 	promulgation
	of
	a
	personnel
policy
	by
	the 	respondent
	which
	sets
	out 	guidelines 	for
	"managers
and
	supervisors"
	to 	follow 	during 	the
	"election
	period" 	in
order 	to 	avoid 	committing
	unfair 	practices.
	(The
	terms
	quoted
above
	are 	not 	defined
	in
	the
	policy.)
	The
	policy 	basically
directs
	managers 	and
	supervisors
	to 	avoid
	participating 	or
expressing
	a
	preference 	for
	any 	employee
	organization
	competing
to 	represent 	non-supervisory
	employees 	under 	the
	SEERA.
	Case
number S
applied 	to 	employees 	conceded by
	CDFEA
	to 	be
	supervisory
("conceded 	supervisors").
	A
separate 	charge, 	case 	number
S-CE-5-S, 	attacks 	the 	policy 	insofar 	as
	it
	affects 	employees
S-CE- 	S
	attacks 	policy
	so 	as
	it
	might 	be
-1-
EMPLOYEES ASSOCIATION,
Charging Party,
v.
STATE
	OF
	CALIFORNIA
	DEPARTI1ENT
OF FORESTRY,
Respondent.
-CE-4-S attacks the policy insofar as it might be

whose supervisory designation is being contested by CDFEA
("contested supervisors"). The latter charge is not affected
by this dismissal.
With respect to conceded supervisors, the charging
party's contentions (as clarified by reference to a request
for injunction relief submitted to the Board) are as follows:
(1) The rights of the supervisors themselves to form and
participate in the activities of employee organizations are
being interfered with. The statutory bases for this charge
are sections 3519 (a) , 3522. 3, 3522.4, and 3522.8. (2) The
rights of rank-and-file employees are being interfered with
because they are being deprived "of their traditional communi-
cation channel for learning the preferences and rationales of
their supervisors concerning employee organizations." It is
alleged that this constitutes a violation of section 3519(a).
(3) The charging party is being deprived "of an important means
of demonstrating the range and nature of its membership."
It is alleged that this violates section 3519 (b). (4) The
policy interferes with the charging party's internal adminis-
trative affairs by directing supervisor-members not to attend
organizational meetings. It is alleged that this violates
section 3519(d) .
With respect to the first theory, it is concluded that
the PERB lacks jurisdiction to grant relief. Section 3522
provides:
-2 -
whose
	supervisory 	designation
	is
	being
	contested
	by
	CDFEA
("contested 	supervisors").
	The
	latter
	charge
	is
	not
	affected
by
	this
	dismissal.
With
	respect
	to
	conceded
	supervisors,
	the 	charging
party's
	contentions
	(as
	clarified
by
	reference 	to
	a
	request
for
	injunctive
	relief
	submitted 	to
	the
	Board)
	are
	as
	follows:
(1)
	The
	rights 	of
	the 	supervisors
	themselves
	to
	form 	and
participate
	in
	the
	activities
	of
	employee
	organizations 	are
being
	interfered
with.
	The
	statutory
	bases
	for
	this
	charge
are 	sections
	3519(a),
	3522.3, 	3522.4,
	and
	3522.8.
	(2)
	The
rights
	of
	rank-and-file
	employees
	are 	being
	interfered
with
because 	they
	are
	being 	deprived
	"of
	their 	traditional
	communi-
cation
	channel
	for 	learning
	the 	preferences
	and
	rationales 	of
their
	supervisors
	concerning
	employee
	organizations."
	It
	is
alleged 	that 	this 	constitutes
	a
	violation 	of 	section
	3519(a).
(3)
	The
	charging
	party 	is
	being 	deprived 	"of
	an
	important
	means
of
	demonstrating 	the 	range
	and
	nature 	of
	its
	membership."
It
	is 	alleged 	that 	this 	violates 	section
	3519
(b).
	(4)
	The
policy 	interferes
	with 	the 	charging
	party's 	internal
	adminis-
trative 	affairs
	by
	directing
	supervisor-members
	not 	to
	attend
organizational
	meetings.
	It 	is
	alleged 	that 	this 	violates
section
	3519(d).
With
	respect 	to 	the
	first
	theory,
	it
	is
	concluded
	that
the
	PERB
	lacks
	jurisdiction
	to 	grant
	relief.
	Section
	3522
provides:
-2-

"Except as provided by Sections 3522.1 to
3522.9, inclusive, supervisory employees
shall not have the rights or be covered by
any provision or definition established by
this chapter."
The sections establishing the rights of supervisory employees
to form organizations and to meet and confer with the state
employer do not establish unfair practice procedures. Section
3522.9 specifically provides that the employer, not the PERB,
may adopt rules and regulations for the administration of
supervisory employer-employee relations. Since the remedial
power of the PERB is set forth in portions of the statute not
referenced by section 3522, this aspect of the charge is
dismissed.
With respect to the second theory, it is noted that
the statute itself contemplates that employee organizations
will be deprived of the participation of supervisory members
in rank-and-file organizational work. Section 3522.2 provides
that supervisors shall not participate in the handling of
grievances on behalf of non-supervisory employees, shall not
participate in meet-and-confer sessions on behalf of non-
supervisory employees, and shall not vote on questions of
ratification or rejection of memorandums of understanding
reached on behalf of non-supervisory employees. Thus, the
statutory scheme, while permitting supervisors to belong to
employee organizations of their choosing, does not establish
a collateral right of non-supervisory employees to have the
benefit of participation by supervisors in their organizational
- 3-
"Except
	as
	provided
	by
	Sections
	3522.1
	to
3522.
9,
	inclusive,
	supervisory
	employees
shall
	not
	have
	the
	rights
	or
	be
	covered
	by
any
	provision
	or 	definition 	established
	by
this
	chapter."
The
	sections
	establishing
	the
	rights
	of 	supervisory
	employees
to
	form
	organizations
	and
	to
	meet 	and
	confer with 	the
	state
employer
	do
	not
	establish 	unfair 	practice
	procedures. 	Section
3522.9
	specifically
	provides
	that
	the
	employer,
	not
	the
	PERB,
may
	adopt
	rules
	and
	regulations
	for 	the
	administration
	of
supervisory
	employer-employee
	relations.
	Since
	the 	remedial
power
	of
	the
	PERB
	is 	set
	forth 	in 	portions 	of 	the
	statute
	not
referenced
	by
	section
	3522,
	this
	aspect
	of
	the
	charge
	is
dismissed.
With
	respect
	to 	the
	second
	theory,
	it
	is
	noted
	that
the
	statute
	itself
	contemplates
	that
	employee
	organizations
will
	be
	deprived
	of
	the
	participation
	of 	supervisory
	members
in 	rank-and-file 	organizational
	work.
	Section
	3522.2
	provides
that
	supervisors
	shall
	not
	participate
	in 	the 	handling
	of
grievances
	on
	behalf 	of non-supervisory
	employees,
	shall 	not
participate
	in 	meet-and-confer 	sessions
	on
	behalf 	of
	non-
supervisory
	employees, 	and
	shall
	not 	vote
	on
	questions 	of
ratification
	or
	rejection 	of
	memorandums
	of 	understanding
reached
	on
	behalf 	of non-supervisory
	employees. 	Thus,
	the
statutory
	scheme,
	while 	permitting 	supervisors 	to 	belong 	to
employee
	organizations 	of 	their
	choosing, 	does
	not 	establish
a
	collateral 	right 	of non-supervisory 	employees 	to 	have 	the
benefit 	of 	participation
	by 	supervisors 	in 	their 	organizational
-3-

affairs. For this reason, the aspect of the charge alleging
a violation of the rights of non-supervisory employees under
section 3519(a) is dismissed.
It follows from the conclusion that non-supervisory
employees have no protected right at stake under the allegations
of the charge, that similarly there is no organizational right
to have supervisory members participate in an organizing campaign
directed at non-supervisory employees. Therefore, the section
3519(b) charge is dismissed.
With respect to the fourth theory, it is noted that the
language of section 3519(d) is derived in large part from NLRA
section 8(a) (2) . 	The purpose of that provision is generally to
insure that an organization that purports to represent employees
will not be subject to the control of, or dependent on the
support of, the employer. Otherwise, the right of employees to
be fully represented in dealings with the employer would be
diminished. See generally Morris, The Developing Labor Law
(BNA, 1971) chapter 7. The present charge does not allege that
the employer is using any employee organization as a vehicle
for subverting employee rights. Therefore, the section 3519(d)
charge is dismissed.
For the foregoing reasons, the unfair practice charge
is dismissed in its entirety with leave to amend within twenty
(20) calendar days .
This action is taken pursuant to PERB Regulation 32630 (a).
If the charging party chooses to amend, the amended charge must
be filed with the Sacramento Regional Office of the PERB within
-4-
affairs.
	For
	this
	reason, 	the 	aspect
	of
	the 	charge
	alleging
a
	violation
	of
	the
	rights
	of
	non-supervisory
	employees
	under
section
	3519(a)
	is
	dismissed.
It
	follows
	from
	the 	conclusion
	that
	non-supervisory
employees
	have
	no
	protected
	right
	at 	stake
	under
	the
	allegations
of 	the 	charge,
	that 	similarly
	there
	is
	no
	organizational
	right
to
	have
	supervisory
	members
	participate
	in
	an
	organizing
	campaign
directed
	at
	non-supervisory
	employees.
	Therefore, 	the
	section
3519(b)
	charge
	is
	dismissed.
TTith
	respect
	to 	the
	fourth 	theory,
	it
	is
	noted
	that
	the
language
	of
	section
	3519(d)
	is
	derived
	in 	large
	part
	from
	NLRA
section 	8(a)(2).
	The
	purpose
	of
	that
	provision
	is
	generally
	to
insure
	that
	an
	organization
	that
	purports
	to
	represent
	employees
will
	not
	be
	subject
	to 	the
	control 	of, 	or
	dependent
	on
	the
support 	of, 	the
	employer. 	Otherwise, 	the
	right
	of
	employees
	to
be
	fully
	represented 	in 	dealings 	with 	the
	employer would 	be
diminished.
	See
	generally
Morris,
	The
	Developing Labor
	Law
(BNA,
	1971)
	chapter
	7.
	The
	present
	charge
	does
	not 	allege 	that
the
	employer
	is
	using
	any 	employee
	organization
	as
	a
	vehicle
for 	subverting
	employee
	rights.
	Therefore, 	the 	section
	3519(d)
charge
	is
	dismissed.
For 	the 	foregoing 	reasons, 	the 	unfair 	practice
	charge
dismissed 	in
	s
	entirety
	with 	leave 	to
	amend
	wi 	twen
(20)
	calendar 	days:
Th.is
	action 	is
	taken 	pursuant 	to
	PERB
	Regulation 	32630(a).
If
	the 	charging 	party 	chooses 	to
	amend,
	the
	amended 	charge 	must
be 	filed 	with 	the 	Sacramento 	Regional 	Office 	of 	the
	PERB
	within
-4-

twenty (20) calendar days. (PERB Regulation 32630 (b) .) Such
amendment must be actually received at the Sacramento Regional
Office of the PERB before the close of business (5:00 p.m. ) on
October 31, 1978 in order to be timely filed. (PERB Regulation
32135.)
If the charging party chooses not to amend the charge,
it may obtain review of the dismissal by filing an appeal to
the Board itself within twenty (20) calendar days after service
of this Notice. (PERB Regulation 32620 (b) .) Such appeal must
be actually received by the Executive Assistant to the Board
before the close of business (5:00 p. m. ) on October 31, 1978
in order to be timely filed. (PERB Regulation 32135.) Such
appeal must be in writing, must be signed by the charging party
or its agent, and must contain the facts and arguments upon
which the appeal is based. (PERB Regulation 32630 (b).) 	The
appeal must be accompanied by proof of service upon all parties.
(PERB Regulation 32135, 32142 and 32630 (b) .)
Dated: 	October 11, 1978
WILLIAM P. SMITH
General Counsel
By
Franklin Silver
Hearing Officer
-5-
twenty
	(20).
	calendar
	days.
	(PERB
	Regulation
	32630(b)
.)
	Such
amendment
	must 	be
	actually
	received
	at
	the
	Sacramento
	Regional
Office 	of
	the
	PERB
	before
	the
	close 	of business
	(5:00 	p.m.)
	on
October
	31, 	1978
	in
	order 	to
	be
	timely
	filed.
	(PERB
	Regulation
32135.)
If
	the
	charging
	party
	chooses
	not 	to
	amend
	the
	charge,
it
	may
	obtain
	review
	of
	the
	dismissal
	by
	filing
	an
	appeal
	to
the
	Board
	itself
within
	VNenty
	(20)
	calendar
	days
	after
	service
of 	this
	Notice.
	(PERB
	Regulation
	32620
(b).)
	Such
	appeal
	must
be
	actually
	received
by
	the 	Executive
Assistant
	to 	the
	Board
before
	the 	close 	of business
	(5:00 	p.m.)
	on
	October
	31,
	1978
in 	order
	to
	be
	timely
	filed.
	(PERR
	Regulation
	32135.)
	Such
appeal
	must
	be
	in 	writing,
	must
	be
	signed
	by
	the 	charging
	party
or
	its
	agent,
	and must
	contain 	the
	facts
	and 	arguments
	upon
which
	the 	appeal
	is
	based.
	(PERB
	Regulation
	32630
(b).)
	The
appeal
	must 	be 	accompanied by
	proof 	of 	service
	upon
	all 	parties.
(PERB
	Regulation
	32135,
	32142
	and 	32630(b)
.)
Dated: 	October
	11,
	1978 
WILLIAM 	P . 	SMITH
General 	Counsel
By
-5-
Franklin 	SilverHearing
	Officer