State of California (Department of Personnel Administration, Developmental Services, and Mental Health); State of California (Department of Personnel Administration) (Communications Workers of America/California Association of Psychiatric Technicians) (PERB 0601S)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
COMMUNICATIONS WORKERS 	OF AMERICA,
PSYCH 	TECH LOCAL 	11555,
Charging 	Party,
v.
STATE OF 	CALIFORNIA 	(DEPARTMENTS 	OF
PERSONNEL ADMINISTRATION,
DEVELOPMENTAL SERVICES, 	AND MENTAL
HEALTH),
Respondent.
)
)
Case 	No. 	S-CE-261-S
PERB 	Decision 	No. 	601-S
December 	30, 	1986
)
)
)
)
)
)
)
)
STATE OF 	CALIFORNIA 	(DEPARTMENT OF
PERSONNEL ADMINISTRATION),
and
COMMUNICATIONS WORKERS 	OF AMERICA,
PSYCH 	TECH LOCAL 	11555,
and
CALIFORNIA 	ASSOCIATION 	OF
PSYCHIATRIC 	TECHNICIANS.
)
Case No. 	S-OB-104-S
(S-D-87-S; 	S-R-18)
Appearances; 	Kanter, 	Merin, 	Dickstein & Kirk by Howard L.
Dickstein 	for 	Communications Workers 	of 	America, 	Psych Tech
Local 	11555; 	Lester L. 	Jones, 	Attorney for the State of
California 	(Departments 	of 	Personnel 	Administration,
Developmental 	Services, 	and Mental Health); 	Loren E. McMaster,
Attorney 	for 	the 	California 	Association 	of 	Psychiatric
Technicians.
Before Hesse, 	Chairperson; 	Porter, 	and Craib, 	Members.
DECISION
This 	decision 	is 	rendered by 	the 	Public 	Employment
Relations 	Board 	(PERB 	or 	Board) 	following 	the 	appeal 	by the
Communications 	Workers 	of America, 	Psych 	Tech Local 	11555 	(CWA)
)
)
)
)
_____________ )
)
)
)
)
)
)
)
)
)
)
)
_____________ )

of 	a 	proposed 	decision 	by a 	PERB 	administrative 	law 	judge
(ALJ). 	In 	that decision, 	the ALJ found that the State of
California 	(the 	employer) 	had violated portions 	of 	the 	State
Employer-Employee 	Relations 	Act 	(SEERA)1' 	by 	certain 	actions
that 	occurred 	prior 	to 	and 	concurrent 	with 	a 	decertification
election. 	The ALJ declined, 	however, 	to overturn 	the 	results
of 	the 	election 	on 	the 	grounds 	that 	the 	employer's 	conduct 	was
neither 	widespread 	nor 	egregious 	enough 	to 	taint 	the 	election
itself, 	that 	is, 	the 	employer's 	conduct did not have a probable
impact 	on 	the 	outcome 	of 	the 	election.
The 	Board has 	carefully 	reviewed 	the 	entire 	record 	in 	this
case, 	including the proposed decision, 	the exceptions 	thereto,
and 	the 	hearing 	transcripts. 	We 	adopt 	the 	findings 	of 	fact 	and
conclusions 	of 	law 	set 	forth 	in 	the ALJ's decision, 	attached
hereto, 	consistent 	with 	our 	discussion below.
DISCUSSION
The 	ALJ's 	proposed decision 	provides 	a 	complete 	and
persuasive 	analysis 	of all 	of 	the 	arguments 	raised by 	the
parties 	over 	the 	extensive history of 	this 	case. 	We
nonetheless 	will 	comment briefly on 	the 	exceptions 	to his
decision 	raised by CWA 	in 	its 	appeal 	to this 	Board.2
1SEERA 	is 	codified 	at 	Government 	Code 	section 	3512 	et
seq. 	Unless 	otherwise 	indicated, 	all 	statutory 	references
herein 	are 	to 	the 	Government 	Code.
2We 	note 	that 	none 	of 	the parties 	excepted 	to 	the 	factual
findings 	of 	the ALJ. 	CWA excepted 	only 	to 	several 	of 	the ALJ's
conclusions 	of 	law.
22

CWA 	first 	argues 	that 	the 	ALJ 	erred 	when he 	ruled 	that 	the
filing 	and 	subsequent 	withdrawal 	of 	a 	unit 	modification
petition by 	the 	employer 	did 	not 	constitute 	an 	unfair 	practice
that 	could 	be 	adequately 	remedied 	only by 	setting 	aside 	the
decertification 	election. 	To 	the 	contrary, 	the Board 	finds
that 	the 	ALJ 	thoroughly 	examined 	the 	relevant 	facts 	and
properly 	applied 	the 	appropriate 	test 	to 	determine 	whether 	the
employer's 	actions 	were 	unlawful. 	We 	find 	that 	the 	record
supports 	his 	conclusion 	that 	no 	unfair 	practice 	occurred by 	the
employer's 	filing 	of 	a 	unit 	modification petition 	at 	the 	end 	of
the 	window period, 	and 	later withdrawal 	of 	the petition.
Second, 	CWA argues 	that 	the ALJ erred 	in 	not 	setting 	aside
the 	election, 	given his 	finding 	that 	the 	state 	committed 	five
unfair 	practices. 	We 	disagree 	and 	note 	specifically 	the 	ALJ's
discussion 	of 	the 	limited 	impact 	of 	the 	violations, 	and his
careful 	crafting of 	a 	remedy appropriate 	to 	the 	scope 	of 	the
violations. 	The 	record 	amply 	supports 	the 	limited 	remedy of 	a
cease-and-desist 	order, 	and 	restoration 	of access 	rights,
bulletin board space, 	and 	telephone privileges. 	The 	record
does 	not 	support 	setting 	aside 	the 	election 	and 	denying
employees 	the 	free 	choice 	to 	select 	another 	representative
because of the 	limited, 	almost minimal, 	nature of the
violations.
Finally, 	CWA argues 	that 	the 	ALJ 	"ignored 	election
objections 	which, 	on undisputed 	facts, 	require a 	new
election." 	Again, 	we 	disagree. 	The ALJ 	fully considered 	the
3
3

allegation 	that 	the 	California 	Association 	of 	Psychiatric
Technicians 	(CAPT) 	was 	granted 	improper 	access 	rights prior 	to
the 	question 	of 	representation being 	raised. 	He 	correctly
rejected 	this 	allegation 	as 	unproven 	and unfounded. 	Further,
the 	ALJ 	carefully 	examined 	and 	rejected 	CWA's 	assertion 	that
CAPT was 	improperly 	"recognized" 	by the 	employer 	at 	a 	time 	when
CWA was 	the 	undisputed 	exclusive 	representative. 	We 	concur 	in
his 	ruling 	that 	no 	such 	improper 	"recognition" 	was 	granted 	to
the 	decertifying 	union.
In 	conclusion, 	the Board affirms 	the 	findings 	and
conclusions 	of 	the 	ALJ, 	and adopts his 	proposed decision 	and
remedy 	as 	those 	of 	the 	Board 	itself.
4

ORDER 	IN CASE NO. 	S-CE-261-S
Upon 	the 	foregoing 	findings 	of 	fact 	and 	conclusions 	of 	law
and 	the 	entire 	record 	in 	this 	case, 	it 	is 	found 	that 	the 	State
of 	California 	(Departments 	of 	Developmental 	Services 	and 	Mental
Health) has violated sections 3519(a), 	(b), 	(c), and 	(d) of the
State employer-employee Relations 	Act. 	Pursuant 	to 	section
3514.5(c) 	of 	the Government Code, 	it hereby is 	ORDERED that 	the
Departments 	of 	Developmental 	Services 	and Mental 	Health
(hereinafter DDS and DMH, 	respectively), 	their officers 	and
representatives 	shall:
1. 	CEASE AND DESIST FROM:
A. 	Making 	unilateral 	changes 	in 	access 	rights 	of 	CWA
representatives 	by banning 	them 	from 	the 	nocturnal 	distribution
of 	literature 	at 	Camarillo 	State 	Hospital 	and by 	requiring 	them
to 	give 	24 hours 	notice 	prior 	to entering 	units 	at 	Camarillo
and 	Napa 	State 	Hospitals.
B. 	Making unilateral 	changes 	in 	access 	rights 	of 	CWA
by 	prohibiting 	representatives 	of 	the 	organization 	from 	using
the 	telephone 	at 	Patton 	State 	Hospital 	for 	grievance 	processing
and 	other 	representational 	purposes.
C. 	Interfering with 	the 	protected 	rights 	of 	employees
to participate 	in 	the 	activities 	of 	employee 	organizations 	and
giving unlawful 	support 	to CAPT by the posting of 	a 	list 	of
CAPT 	"stewards" 	at Metropolitan 	State 	Hospital.
D. 	Interfering 	with 	the protected 	access 	rights 	of 	CWA
by 	reducing 	CWA's 	bulletin board 	space 	at 	eight 	DDS 	and 	DMH
hospitals.
5

E. 	Interfering with 	the 	protected 	rights 	of 	employees
to participate 	in 	the 	activities 	of employee 	organizations 	and
giving 	unlawful 	support 	to CAPT 	through 	pro-CAPT statements
made 	by management 	and/or 	supervisory 	employees 	at 	Fairview,
Lanterman, 	Metropolitan, 	and Stockton 	State Hospitals.
2. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED 	TO
EFFECTUATE 	THE 	POLICIES OF 	THE 	STATE 	EMPLOYER-EMPLOYEE
RELATIONS ACT:
A. 	Restore 	to CWA, 	until 	either 	CWA ceases 	to be 	the
exclusive 	representative 	of 	Unit 	18 	or 	the 	contractual 	access
clause 	is 	changed by subsequent negotiation, 	access 	rights 	at
Camarillo 	and 	Napa 	State 	Hospitals 	consistent 	with 	Article 	XII,
sections 	1 	and 	2, 	of 	CWA's 	current agreement with 	the 	State.
B. 	Restore 	to CWA, 	until 	either 	CWA ceases 	to be 	the
exclusive 	representative 	of 	Unit 	18 	or 	the past practice 	is
changed by 	subsequent 	negotiation, 	the 	right 	to use 	the
telephone 	at 	Patton 	State 	Hospital 	for 	grievance 	processing 	and
other 	representational 	purposes 	to 	the 	extent 	permitted 	prior
to 	the 	spring of 	1985.
C. 	Remove 	from 	all 	management 	bulletin boards 	at
Metropolitan 	State Hospital 	all 	copies of 	the 	June 	4, 	1985 memo
by 	Denise 	Bates 	listing 	CAPT 	"stewards" 	and her 	subsequent
correction 	memo.
D. 	Restore 	to CWA, 	until 	either 	CWA ceases 	to be 	the
exclusive 	representative 	of 	Unit 	18 	or 	the 	contractual 	bulletin
board 	clause 	is 	changed by subsequent 	negotiation, 	all 	bulletin
66

board 	space 	removed 	from 	CWA during 	the 	first 	six 	months 	of
1985 	in hospitals 	operated by DDS 	and 	DMH.
E. 	Within 	thirty-five 	(35) 	days 	following 	the 	date 	the
Decision 	is 	no longer 	subject 	to reconsideration, 	post 	at all
work 	locations 	throughout 	DDS 	and 	DMH where 	notices 	to members
of 	Unit 	18 are 	customarily posted, 	copies 	of 	the 	Notice
attached hereto 	as 	an 	Appendix. 	The 	Notice 	must be 	signed by
an 	authorized 	agent 	to 	the 	state, 	indicating 	that 	the 	state
will 	comply with 	the 	terms 	of 	this 	Order. 	Such posting 	shall
be 	maintained 	for 	a 	period 	of 	thirty 	(30) 	consecutive
workdays. 	Reasonable 	steps 	shall 	be 	taken 	to ensure 	that 	the
Notice 	is 	not 	reduced 	in 	size, 	altered, 	defaced, 	or covered by
any other material.
F. 	Make 	written 	notification 	of 	the 	actions 	taken 	to
comply with 	the 	Order 	to 	the 	Sacramento 	Regional 	Director 	of
the 	Public 	Employment 	Relations 	Board 	in 	accord 	with 	the
Director's 	instructions.
All 	other 	allegations 	in 	Unfair 	Practice 	Charge 	No.
S-CE-261-S 	are 	hereby 	DISMISSED.
7

ORDER 	IN CASE NO. 	S-OB-104-S
(S-D-87-S; 	S-R-18)
Upon 	the 	foregoing 	findings 	of 	fact 	and 	conclusions 	of 	law
and 	the 	entire 	record 	in 	this 	case, 	the 	Board 	ORDERS 	that 	the
election 	objections 	in 	Case 	No. 	S-OB-104-S be 	DISMISSED. 	We
further 	ORDER 	that 	the 	Regional 	Director 	certify 	the 	results 	of
the 	election 	in 	Case 	Nos. 	S-D-87-S and 	S-R-18, 	and 	that he 	take
all 	other 	action 	necessary 	in 	this 	case 	that 	is 	not
inconsistent 	with 	this 	Decision.
By 	the 	BOARD 3
3Members 	Morgenstern 	and 	Burt 	did 	not 	participate 	in 	this
Decision	sion.	.
8

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. 	S-CE-261-S,
Communications Workers 	of America, 	Psych 	Tech Local 	11555 	v.
State 	of 	California 	(Departments 	of 	Personnel 	Administration,
Developmental 	Services 	and Mental 	Health), 	and Representation
Case No. 	S-OB-104-S, 	State of 	California 	(Department of
Personnel 	Administration) 	and 	Communications Workers 	of
America 	and 	California 	Association 	of 	Psychiatric 	Technicians,
in 	which 	all 	parties had 	the 	right 	to participate, 	it has been
found 	that 	the 	State 	of 	California has 	violated 	sections
3 519(a), (b), (c), and (d) of the State Employer-Employee
Relations 	Act. 	The 	State 	violated 	the Act by making
unilateral 	changes 	in 	the 	access 	rights 	of 	CWA by banning 	CWA
organizers 	from 	making 	nocturnal 	distributions 	of 	literature
at 	Camarillo 	State 	Hospital 	and by 	requiring 	the 	organization
give 	24 hours 	notice 	at 	Camarillo and Napa 	State 	Hospitals
prior 	to visits by 	its 	representatives 	to hospital 	units. 	The
State 	violated 	the 	Act by making 	unilateral 	changes 	in 	the
access 	rights 	of 	CWA 	representatives 	at 	Patton 	State 	Hospital
by 	prohibiting 	them 	from 	using 	the 	telephone 	for 	grievance
processing 	and 	other 	representational 	purposes. 	The 	State
violated 	the 	Act 	by 	interfering with 	the 	protected 	rights 	of
employees 	and 	giving 	unlawful 	support 	to 	CAPT by posting 	a
list 	of 	CAPT 	"stewards" 	at Metropolitan 	State Hospital. 	The
State 	violated 	the 	Act by 	interfering 	with 	the 	protected
access 	rights 	of 	CWA by 	reducing 	CWA's bulletin board 	space 	at
eight 	DMH and 	DDS hospitals. 	The 	State 	violated the 	Act by
interfering 	with 	protected 	rights 	of 	employees 	and providing
unlawful 	support 	to 	CAPT 	through 	pro-CAPT 	statements 	made 	by
management 	and/or 	supervisory 	employees 	at 	Fairview,
Lanterman, 	Metropolitan, 	and 	Stockton 	State Hospitals.
As 	a 	result 	of 	this 	conduct, 	we have been 	ordered 	to post
this 	Notice 	and we 	will 	abide by 	the 	following. 	We will:
1. 	CEASE AND DESIST 	FROM:
A. 	Making 	unilateral 	changes 	in 	access 	rights 	of 	CWA
representatives 	by banning 	them 	from 	the 	nocturnal
distribution 	of 	literature 	at 	Camarillo 	State 	Hospital 	and by
1l

requiring 	that 	they 	give 	24 hours 	notice 	prior 	to 	entering
units 	at 	Camarillo and Napa 	State Hospitals.
B. 	Making unilateral 	changes 	in 	access 	rights 	of 	CWA
by 	prohibiting 	representatives 	of 	the 	organization 	from 	using
the 	telephone 	at 	Patton 	State 	Hospital 	for 	grievance
processing 	and 	other 	representational 	purposes.
C. 	Interfering with 	the 	protected 	rights 	of 	employees
to participate 	in 	the 	activities 	of 	employee 	organizations 	and
giving 	unlawful 	support 	to 	CAPT by 	the 	posting of 	a 	list 	of
CAPT 	"stewards" 	at Metropolitan 	State Hospital.
D. 	Interfering with 	the 	protected 	access 	rights 	of
CWA by 	reducing 	CWA's 	bulletin board 	space 	at 	eight 	DDS 	and
DMH hospitals.
E. 	Interfering with 	the protected 	rights 	of 	employees
to 	participate 	in 	the 	activities of 	employee 	organizations 	and
giving 	unlawful 	support 	to 	CAPT 	through 	pro-CAPT 	statements
made 	by management 	and/or 	supervisory 	employees 	at 	Fairview,
Lanterman, 	Metropolitan, 	Stockton State Hospitals.
2. 	TAKE 	THE FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE 	THE 	POLICIES 	OF 	THE 	STATE 	EMPLOYER-EMPLOYEE
RELATIONS ACT:
A. 	Restore 	to CWA, 	until 	either 	CWA ceases 	to be 	the
exclusive 	representative 	of 	Unit 	18 	or 	the 	contractual 	access
clause 	is 	changed by 	subsequent 	negotiation, 	access 	rights 	at
Camarillo 	and 	Napa 	State 	Hospitals 	consistent 	with 	Article
XII, 	sections 	1 	and 	2, 	of 	CWA's 	current agreement with 	the
State.
B. 	Restore 	to CWA, 	until 	either 	CWA ceases 	to be 	the
exclusive 	representative 	of 	Unit 	18 or 	the 	past practice 	is
changed by subsequent 	negotiation, 	the 	right 	to use 	the
telephone 	at 	Patton 	State 	Hospital 	for 	grievance 	processing
and 	other 	representational 	purposes 	to 	the 	extent 	permitted
prior 	to 	the 	spring of 	1985.
C. 	Remove 	from 	all 	management bulletin boards 	at
Metropolitan 	State 	Hospital 	all 	copies 	of 	the 	June 	4, 	1985
memo by Denise 	Bates 	listing 	CAPT 	"stewards" 	and her
subsequent 	correction 	memo.
D. 	Restore 	to CWA, 	until 	either 	CWA ceases 	to be 	the
exclusive 	representative 	of 	Unit 	18 	or 	the 	contractual
bulletin 	board 	clause 	is 	changed by 	subsequent 	negotiation,
22

all 	bulletin 	board 	space 	removed 	from 	CWA during 	the 	first 	six
months 	of 	1985 	in hospitals 	operated by DDS 	and 	DMH.
Dated: 	STATE OF 	CALIFORNIA
Department 	of Mental 	Health
By:
Authorized 	Representative
Dated: 	STATE OF 	CALIFORNIA
Department 	of 	Developmental 	Services
! ! By:
Authorized 	Representative
THIS 	IS AN OFFICIAL NOTICE. 	IT MUST REMAIN POSTED 	FOR THIRTY
(30) 	CONSECUTIVE WORKDAYS 	FROM 	THE DATE 	OF POSTING AND MUST
NOT BE REDUCED 	IN SIZE, 	DEFACED, 	ALTERED OR COVERED BY ANY
MATERIAL.
33

. - -
STATE 	OF 	CALIFORNIA
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
COMMUNICATION 	WORKERS 	OF AMERICA,
PSYCH TECH 	LOCAL 	11555,
Charging 	Party,
v.
STATE 	OF 	CALIFORNIA 	(DEPARTMENTS 	OF
PERSONNEL 	ADMINISTRATION,
DEVELOPMENTAL 	SERVICES,
and MENTAL HEALTH),
Respondents.
Unfair 	Practice
Case No. 	S-CE-261-S
STATE 	OF 	CALIFORNIA 	(DEPARTMENT 	OF
PERSONNEL ADMINISTRATION),
and
COMMUNICATION 	WORKERS 	OF AMERICA,
PSYCH TECH 	LOCAL 	11555,
and
CALIFORNIA 	ASSOCIATION 	OF
PSYCHIATRIC 	TECHNICIANS.
Representation
Case No. 	S-OB-104-S
(S-D-87-S; 	S-R-18)
PROPOSED 	DECISION
(10/1/86)
Appearances: 	Kanter, 	Williams, 	Merin & Dickstein by Mark
Merin, 	Howard 	L. 	Dickstein 	and Nancy Kirk 	for 	Communication
Workers 	of America, 	Psych Tech Local 	11555; 	Lester Jones,
Attorney 	for 	the 	State 	of 	California 	(Departments 	of 	Personnel
Administration, 	Developmental Services, 	and Mental Health);
Loren E. 	McMaster, 	Attorney for 	the California Association of
Psychiatric 	Technicians.
Before Ronald E. 	Blubaugh, 	Administrative Law Judge.
PROCEDURAL 	HISTORY
This 	case 	grows 	out 	of 	the events 	surrounding 	an election
for 	exclusive 	representative 	among 	employees 	in 	State Unit 	18.
This proposed decision has been appealed to the
Board itself and may not be cited as precedent
unless the decision and its rationale have been
adopted by the Board.
)
)
)
)
)
)
)
)
)
)
)
)
)
----------;)
)
)
)
)
)
)
)
)
)
)
________ )

The 	Communication Workers 	of 	America, 	Psych Tech Local 	11555
(CWA), 	contends 	that during 	the pre-election period the 	State
of 	California 	(State) 	made unilateral 	changes 	in organizational
rights. 	In addition, 	CWA continues, 	the State 	interfered with
protected 	rights 	of 	CWA while 	favoring 	and 	supporting 	CWA's
election 	rival, 	the California Association of 	Psychiatric
Technicians 	(CAPT).
In 	response 	to 	these 	alleged wrongs, 	CWA filed 	an unfair
practice 	charge 	and 	objections 	to 	the 	conduct 	of 	the 	election.
As 	a 	remedy, 	it 	asks 	that 	the election be 	set 	aside 	and 	that 	a
new election be 	ordered. 	Both 	the 	State 	and CAPT deny 	that 	any
wrongful 	conduct 	took place 	and 	argue 	that 	even 	if 	there were
some violation of 	law, 	it was 	insufficient 	to 	justify a new
election.
The 	charge which 	commenced 	this 	action was 	filed 	on 	June 	6,
1985, 	by CWA. 	It was subsequently amended on June 25, 	June 27,
July 3, 	and August 2. 	On August 	6, 	1985, 	the Sacramento
Regional 	Attorney 	of 	the 	Public 	Employment 	Relations 	Board
(PERB or Board) 	issued 	a partial dismissal 	of 	the charge. 	On
the 	same day, 	he 	also 	issued 	a 	complaint. 	CWA 	appealed 	the
partial dismissal 	to the Board 	and on December 	13, 	1985, 	the
Board, 	in Decision No. 	542-S, 	reinstated the dismissed portions
of 	the union's 	factual 	allegations.
As 	this 	case went to hearing, 	the complaint 	alleged 	that
the 	State 	violated 	State 	Employer-Employee 	Relations 	Act
N
	2

section 3519(c) 	and, 	derivatively, 	sections 3519(a) 	and 	(b)1
by making 	unilateral 	changes 	in:
1) 	Contractual 	access 	policy by 	requiring 	that 	CWA
representatives 	provide 	24-hour 	notice 	for 	visitation 	to
hospital units.
2) 	Telephone use policy.
3) 	Permissible 	locations 	for 	the distribution of
literature.
The 	complaint 	also 	alleged 	that 	the 	State 	of 	California
violated SEERA sections 3519(a), 	(b) 	and 	(d) 	by:
1Unless 	otherwise 	indicated, 	all 	references 	are 	to 	the
Government 	Code. 	The 	State Employer-Employee 	Relations 	Act
(SEERA or Act) 	is 	found 	at 	section 3512 	et 	seq. 	In 	relevant
part, 	section 3519 provides 	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.
(c) 	Refuse or 	fail 	to meet 	and confer 	in
good 	faith with 	a 	recognized 	employee
organization.
(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.
33

1) 	Posting 	employer-written memoranda which 	imply 	support
for 	CAPT 	over 	CWA.
2) 	Granting 	CAPT 	the use 	of 	State 	facilities 	denied 	to
CWA.
3) 	Permitting 	supervisors 	to make 	statements which 	imply
state 	support 	for 	CAPT 	over 	CWA.
4) 	Distributing 	literature 	for 	CAPT 	through 	the 	hospital
mail 	system.
5) 	Filing 	a 	unit modification petition 	to 	remove 	senior
psychiatric 	technicians 	from 	the 	bargaining 	unit.
The 	CWA 	objections 	followed 	a 	decertification 	election
conducted 	via mail 	ballot 	during 	the 	summer 	of 	1985. 	At 	the
conclusion of 	voting 	on July 	17, 	the 	ballots 	initially were
impounded. 	This 	was 	to 	await 	a 	PERB 	decision 	on CWA's request
to 	delay 	a 	ballot 	count 	pending 	resolution of 	the unfair
practice charge. 	On December 13, 	1985, 	the PERB, 	in Order
No. 	Ad-151-S, 	directed that the ballots 	be counted. 	The
ballots were counted on December 	30, 	with the 	following 	result:
Approximate 	number 	of 	eligible voters 	- 	7656
Void ballots 	- 	86
Votes 	cast 	for 	CWA - 	1662
Votes 	cast 	for CAPT - 	2353
Votes 	cast 	for 	no 	representation 	- 	129
Valid 	votes 	counted 	- 	4144
A majority of 	the votes were 	thus 	cast 	for 	CAPT.
On January 9, 	1986, 	CWA filed objections 	to 	the conduct 	of
the 	decertification election. 	The 	objections 	set 	out 	four
4
4

basic 	arguments 	which may be 	summarized2 as 	follows:
1) 	That CAPT was 	not 	an employee organization 	as 	defined
in SEERA. 3	3 W
2) 	That 	the 	State 	filed 	a 	unit modification petition
which 	had 	the 	effect 	of 	undermining 	CWA's 	support 	among 	senior
psychiatric 	technicians.
3) 	That 	the 	State misrepresented 	to Unit 	18 	employees 	the
nature 	of 	CAPT's 	status 	compared 	to 	that 	of CWA.
4) 	That 	the 	State 	gave 	illegally broad 	recognition,
access, 	visibility and 	support 	to CAPT.
The 	unfair 	practice 	charges 	and 	the 	objections 	to 	the
election were 	consolidated 	for 	hearing. 	The 	hearing 	was
conducted 	in 	Sacramento, 	San Bernardino 	and Van Nuys 	over 	18
nonconsecutive days 	in February, 	March 	and April 	of 	1986. 	With
the 	filing 	of 	post-hearing 	briefs, 	the matter was 	submitted 	for
decision on September 2, 	1986.
FINDINGS 	OF 	FACT
The members 	of 	Unit 	18 	are 	employed 	by two 	State
2 The 	statement 	of 	objections 	contains 	15 	numbered
paragraphs. 	In 	its 	brief, 	CWA summarizes 	the objections 	into
four 	contentions 	listed 	here.
3 At 	section 3513(a), 	SEERA contains 	the following
definition:
"Employee organization" 	means 	any
organization which 	includes 	employees 	of 	the
state 	and which has 	as 	one of 	its 	primary
purposes 	representing 	these 	employees 	in
their 	relations with 	the 	state.
55

departments, 	the Department of Developmental 	Services 	(DDS) 	and
the Department 	of Mental Health 	(DMH). 	During 	the 	relevant
period, 	the Department 	of 	Developmental 	Services 	operated
Agnews 	State Hospital 	in San Jose, 	Camarillo 	State Hospital,
Fairview State 	Hospital 	in Costa Mesa, 	Lanterman 	State 	Hospital
in Pomona, 	Napa 	State Hospital, 	Porterville State Hospital,
Sonoma 	State Hospital 	in Eldridge 	and 	Stockton 	State Hospital.
The 	Department 	of 	Mental 	Health 	operated Atascadero 	State
Hospital, 	Metropolitan State Hospital 	in Norwalk, 	and Patton
State Hospital 	in San Bernardino. 	In 	1986, 	subsequent 	to 	the
events 	at 	issue, 	responsibility for Napa 	State Hospital was
transferred 	from DDS 	to 	DMH.
Each 	State 	hospital 	is 	supervised 	by 	an executive 	director
whose 	two 	primary operational 	subordinates 	are 	a 	clinical
director 	and 	a 	hospital 	administrator. 	The 	clinical 	director
is 	in charge 	of 	the 	program directors who 	operate 	those
portions 	of 	a hospital where 	the patients 	or clients4 are
housed 	and 	treated. 	The hospital 	administrator 	is 	in charge of
the maintenance of 	the 	physical 	plant 	and 	supervises, 	among
others, 	the 	labor 	relations 	officer.
4Persons 	under 	treatment 	in hospitals 	operated 	by 	the
Department 	of Mental 	Health 	are generally 	referred 	to 	as
"patients." 	Persons 	under 	treatment 	in hospitals 	for 	the
developmentally disabled 	(formerly know 	as 	retarded) 	are
generally 	referred 	to 	as 	"clients." 	(See Reporter's 	Transcript
at Vol. 	I, 	pp. 	39-40.) 	To avoid confusion and to keep the
terminology 	in 	the 	Proposed 	Decision 	consistent with 	lay usage,
the 	term 	"patient" 	will 	be used 	to 	denote 	all 	persons 	receiving
treatment 	in 	the 	State 	hospitals.
66

The basic 	treatment component 	of 	a 	State hospital 	is 	a
"program." 	Programs 	vary 	according 	to 	the 	type 	of 	patient
involved 	and 	are 	subdivided 	into 	units, 	the 	living 	and 	service
areas 	for 	patients. 	Units 	generally are composed of
dormitories 	or private 	rooms where the patients 	sleep, 	a
patient 	recreation area with a 	television set, 	a unit 	office,
offices 	for 	various 	professional 	employees 	and 	a 	treatment 	room
where medications 	are dispensed. 	Units 	typically 	also 	have 	an
employee 	break 	room containing 	a 	table 	and 	chairs 	and 	usually
one 	or more 	bulletin boards. 	During 	the 	relevant 	period, 	there
were 	some 	25 	programs 	comprising 	80 	units within 	the 	Department
of Mental 	Health. 	There were 	60 	programs 	comprising 	291 	units
within 	the Department 	of 	Developmental 	Services.
State 	employees 	working within Unit 	18 	are divided 	into 	11
civil 	service 	classes. 	As 	of 	the voter 	eligibility cutoff 	date
for 	the election, 	the unit 	contained 	7,656 	employees. 	Of
these, 	some 	890 were Senior Psychiatric Technicians, 	a 	job
classification 	key to 	the dispute 	at 	issue.
Employees work on three 	shifts, 	round the clock, 	seven days
a week 	in the 	hospital 	units. 	The person 	in charge 	of 	each
shift 	is 	called 	the 	shift 	lead 	and may be 	either 	a 	Senior
Psychiatric Technician or 	a 	Registered Nurse 	II. 	The 	shift
lead 	reports 	to 	a unit 	supervisor who 	in turn 	reports 	to 	a
program director. 	The unit 	supervisor 	has 	24-hour
responsibility 	for 	a 	living 	unit.
7
7

Since November 	of 	1981, 	the exclusive 	representative 	for
Unit 	18 	employees 	has been CWA. 	CWA's 	original 	contract
covering Unit 	18 	employees 	was 	entered 	into with 	the 	State 	on
July 1, 	1982. 	It expired on June 30, 	1985.
ALLEGED 	UNILATERAL 	CHANGES
Access
State 	hospital 	administrators 	long 	have 	been 	concerned
about 	intrusions 	upon 	the 	privacy of 	patients 	due 	to 	access 	by
union 	representatives 	and 	others. 	Hospitals 	are 	the homes 	of
patients. 	Patients 	live in the units, 	eat there, 	bathe there.
Traffic 	by outsiders 	is 	disruptive 	and 	for 	a 	time union
representatives were barred 	from patient 	living 	areas. 	In 	a
1980 	settlement 	of 	a 	series 	of unfair 	labor practices, 	the two
departments 	relaxed 	the 	prior 	ban 	and 	granted 	limited 	access 	to
union organizers. 	Under 	the 	terms 	of 	the 	agreement, 	union
representatives 	employed 	by 	the 	State were 	permitted 	to 	visit
unit 	break 	rooms 	upon 	advance 	notice 	of 	at 	least 	24 	hours 	to
the 	program director.
In 	1982, 	CWA and 	the State 	agreed to 	an access 	clause 	in
their 	initial 	contract. 	During 	the 	relevant 	period, 	the clause
provided 	that 	chapter 	officers 	and 	stewards 	would 	have 	access
to 	the 	units 	upon 	notification 	and 	prior 	approval 	by 	the
program director 	"or 	designee." 	The 	clause 	guarantees 	chapter
officers 	and 	stewards 	" . . . 	access 	through work 	areas 	for
purposes 	of 	posting 	literature 	in 	unit 	break 	rooms 	. . . "
Access may be deferred 	for 	client care, 	privacy, 	safety,
8

security or other necessary business 	reasons. 	However, 	"access
shall 	not 	be 	unreasonably denied."55 The 	contract 	contains 	no
5 The 	contractual 	access 	provision 	is 	found 	in Article
XII, 	section 1. 	It provides as follows:
1. 	Access
(Revised July 	1, 	1983)
CWA National 	Staff 	representatives,
Local Staff, 	Local Officers, 	Chapter
Officers 	and 	Stewards 	shall 	have 	access 	to
employees 	for 	purposes 	of 	representation
according 	to 	the 	following:
(a) 	National Staff, 	Local Staff, 	and
Local 	Officers 	seeking 	access 	to 	employees
shall 	identify 	themselves 	to 	the 	facility
Labor 	Relations 	Coordinator who will 	make
the 	necessary 	arrangements 	for 	access 	to
employees.
(b) 	Chapter Officers 	and Stewards 	shall
have 	access 	to 	employees 	in 	the 	area 	of
responsibility 	they 	have 	been 	assigned 	by
CWA. 	They 	shall 	notify 	the 	Program Director
or 	designee 	and must 	receive 	his/her
approval 	prior 	to 	entering 	the 	program.
Where 	employees 	work 	in 	other 	than client
programs, 	CWA shall 	notify the department
head 	or 	designee, 	and must 	receive his/her
approval 	prior 	to 	entering 	the work 	area.
(1) Meetings, conferences or
investigations 	may be 	held 	in 	resident
care 	or 	treatment 	areas 	only with 	the
approval 	of 	the 	Program Director 	or
designee. 	Otherwise, 	all meetings,
conferences 	or 	investigations 	shall 	be
held 	in unit breakrooms, 	or other
appropriate 	non-work 	areas.
(2) 	Chapter Officers 	and Stewards 	shall
have 	the 	right 	to 	access 	through work
areas 	for 	purposes 	of 	posting 	literature
in Unit 	breakrooms 	in 	conformance with
Article XII, 	section 2.
(c) 	Access may be deferred 	for 	reasons
related to client care, 	privacy, 	safety,
security, 	or other 	necessary business
reasons. 	Access 	shall 	not 	be unreasonably
denied.
99

requirement 	that 	CWA officers 	or 	stewards 	must 	give 	24-hours
notice 	prior 	to visiting 	a 	hospital 	unit.
When CAPT 	commenced 	its 	organizing 	campaign 	in 	early 	1985,
it 	requested 	but was 	denied 	hospital 	access 	equivalent 	to 	that
of CWA. 	In April 	19 85, 	CAPT met the 	required showing of
interest 	for 	a decertification election. 	Thereafter, 	the
organization was 	granted 	limited 	access 	by 	both DMH 	and 	DDS.
In virtually 	identical May memos, 	DDS Labor 	Relations
Specialist 	Gary 	Scott 	and 	DMH Labor 	Relations 	Chief 	James 	Moore
advised 	their 	respective 	hospital 	labor 	relations 	coordinators
to 	permit CAPT to 	organize 	on hospital 	grounds. 	The memos
directed 	that 	hospital 	employees 	representing 	CAPT 	be 	granted
access 	to 	employee 	break 	rooms 	in 	the 	living 	units 	except 	for
the 	nocturnal 	shift. 	CAPT 	representatives 	desiring 	to 	exercise
the 	access 	privilege were 	to 	provide 	notice 	to 	the 	appropriate
program directors 	24 	to 	72 	hours 	prior 	to 	their visits. 	CAPT
organizers 	were 	to 	be granted 	space 	for 	the 	posting 	of 	leaflets
in 	the 	unit 	break 	rooms 	but were 	to 	provide 	an 	advance 	copy of
all 	posted 	or 	distributed materials. 	Moore 	testified 	that
administrators 	of 	DMH hospitals were 	authorized 	to waive 	the
24-hour 	notice 	requirement 	if 	they desired.
Although 	the memos 	of Messrs. 	Moore 	and 	Scott 	pertained
only to 	access 	for CAPT, 	hospital 	administrators 	at Camarillo,
Fairview 	and 	Napa 	enforced 	some 	of 	the 	CAPT 	restrictions
against 	CWA organizers.
10

Barbara 	Long, 	CWA grievance 	coordinator 	for 	the 	State
hospitals, 	was 	told during 	the 	spring 	of 	1985 	that 	she 	could no
longer 	visit 	the 	units 	at 	Camarillo 	State Hospital without
giving 	24 	hours 	advance notice. 	She 	also was 	prohibited 	from
posting 	literature 	on the nocturnal 	shift. 	Although 	she 	had
been 	active with CWA for 	some 	time, 	she 	had 	never 	previously
been 	requested 	to 	give 	24 	hours 	advance 	notice or 	been banned
from visiting 	other 	units 	at 	night. 	CWA's 	contract with 	the
State 	contains 	no 	prohibition 	against 	nighttime 	access 	to 	units.
Similarly, 	all 	employee 	organizations were 	requested 	to
give 	24 	hours 	notice 	for 	access 	at 	Fairview State Hospital.
Hal 	Britt, 	hospital 	personnel 	officer 	and 	labor 	relations
coordinator, 	testified 	that 	the 	24-hour 	rule was 	in effect 	even
prior 	to 	January 1985. 	However, 	he continued, 	during 	the
election 	campaign 	individual 	program directors 	often waived 	the
24-hour 	requirement 	for 	union 	representatives.
At 	Napa, 	Hospital Administrator 	Richard 	P. 	Friday directed
the 	CWA 	representative 	to 	provide 	an 	advance written 	schedule
of 	the 	times 	that 	union 	representatives would 	post 	materials 	on
unit 	break 	room bulletin boards. 	The 	schedule was 	to 	be
provided 	to 	the 	program director 	and 	approved 	prior 	to 	the
representative's 	visit. 	CWA 	steward 	Deborah Whitlock credibly
testified 	that 	she 	had 	been 	directed 	to 	give 	24-hour 	advance
notice 	prior 	to 	visiting 	unit 	break 	rooms 	in 	order 	to 	post
literature. 	Mr. 	Friday testified 	that 	CWA 	representatives 	need
not 	secure 	prior 	approval 	but 	were 	required 	only 	to 	give
11

advance notice. 	However, 	on June 14, 	1985, 	he set out a
requirement 	for 	prior written 	approval 	in 	a written 	instruction
to CWA 	representative Buck Bagot. 	I 	find Mr. 	Friday's 	1985
writing 	more 	persuasive 	than 	his 	testimony.
Use 	of 	Telephones
The 	contract 	between 	the 	parties 	makes 	no 	provision 	for 	the
use 	of 	State 	telephones 	by employee 	organization
representatives. 	Nonetheless, 	according 	to DMH Labor Relations
Chief Moore, 	it has 	been the practice within the Department 	of
Mental 	Health 	that 	exclusive 	representatives 	are 	permitted 	to
use 	State 	phones 	to 	facilitate 	the 	resolution of 	grievances 	and
other 	representation 	issues. 	Use 	of 	the 	State phones 	for 	other
union 	business 	has 	not 	been 	permitted.
Both 	DMH 	and 	DDS 	consistently 	have 	prohibited 	the
installation of 	private 	phones 	by employee 	organizations. 	As 	a
matter 	of 	policy, 	the departments 	do 	not want 	any phones 	in
State 	hospitals 	over which 	they 	lack control.
During 	the 	pre-election campaign period, 	CWA
representatives 	at 	Patton 	State 	Hospital 	were 	told 	they 	could
no 	longer use 	the 	State phone 	for union business. 	One 	of 	those
representatives, 	Homer 	Silver, 	then asked to 	install 	a private
CWA phone. 	His 	request was 	denied. 	Requests 	by CWA
representatives 	to 	install 	private 	phones 	also were 	turned 	down
at Agnews 	and Lanterman 	State Hospitals.
Leaflettina 	Locations
The 	contract 	between CWA 	and 	the 	State 	provides 	in Article
12

XII 	that 	"CWA 	representatives 	may, 	during 	non-work hours,
distribute 	CWA 	literature 	in 	non-work 	areas."66 Although 	the
right 	is 	stated broadly, 	CWA 	agrees 	not 	to distribute
literature that 	is 	"libelous, 	obscene, 	defamatory," 	politically
partisan, 	or 	inconsistent with good 	labor 	relations. 	And, 	as
noted elsewhere, 	literature distribution, 	like other 	access
rights, 	is 	subject to deferral for 	"client care, 	privacy,
safety, 	security" 	or other 	"necessary" 	business 	reasons. 	(See
footnote No. 	5, 	supra.)
During the campaign, 	disputes 	arose 	at Camarillo, 	Napa 	and
Patton 	State 	Hospitals 	regarding 	outdoor 	locations 	at 	which CWA
attempted 	to 	distribute 	literature.
At 	Camarillo 	State 	Hospital 	representatives 	of 	both CWA 	and
CAPT were 	directed 	by 	the 	hospital 	police 	to 	stop 	distributing
literature 	in 	locations which blocked 	traffic. 	Louis Watts,
the 	labor 	relations 	coordinator 	at Camarillo, 	testified 	that
the union organizers were 	standing 	in 	the middle 	of 	the 	street
in 	front 	of 	buildings 	located 	on 	the 	principal 	access 	road 	to
6 The 	contractual 	provision 	on 	distribution 	of 	literature
is 	found 	in Article XII, 	section 2. 	It provides 	as 	follows:
2. 	Distribution of 	Literature
CWA 	representatives 	may, 	during 	non-work
hours, 	distribute CWA 	literature 	in non-work
areas. 	CWA agrees 	that 	any 	literature
distributed will 	not be 	libelous, 	obscene,
defamatory, 	of 	a partisan political nature,
or 	inconsistent with 	the 	promotion of
harmonious 	labor 	relations 	between 	the 	State
and 	CWA.
13

the 	hospital. 	He 	said 	they were 	stopped 	from distributing
literature 	because 	their 	activity had 	backed 	up 	traffic.
At 	Napa 	State Hospital 	there 	are 	two 	locations 	where 	union
leaflets 	were 	distributed 	during 	the 	1981 	campaign 	for
exclusive 	representative. 	One 	location was 	at 	a 	stop 	sign 	at
the 	intersection of Magnolia Drive 	and 	Spruce Drive, 	directly
in 	front 	of 	the 	hospital 	administration building. 	The other
location was 	at 	the 	rear 	entrance 	to 	the hospital 	at 	the
intersection of 	Imola Avenue 	and 	Cedar 	Drive.
In 	1985, 	CWA 	representatives 	again distributed 	literature
at 	those 	locations. 	For 	a time, 	this practice proceeded
without 	incident. 	However, 	on or about May 28, 	1985, 	hospital
peace 	officers 	halted 	the 	distribution 	of 	CWA 	literature 	at 	the
Magnolia 	and 	Spruce 	stop 	sign. 	The 	officers 	told 	the CWA
representatives 	that 	they were 	blocking 	traffic 	and 	asked 	that
they move 	to 	the 	front 	entrance.
Nevertheless, 	the organizers 	soon were permitted 	to 	resume
leaflet 	distribution 	at 	the 	stop 	sign. 	CWA 	representative
Bagot 	testified 	that 	he was 	able 	to 	convince Hospital
Administrator 	Friday 	that 	leafletting 	by 	the 	sign was 	safer
than 	leafletting 	at 	the 	front entrance. 	Mr. 	Bagot 	testified
that 	CWA 	organizers 	distributed 	leaflets 	at 	the Magnolia-Spruce
stop 	sign before, 	during 	and 	after 	his 	discussions with
Mr. 	Friday about 	access.
At 	the 	Imola Avenue 	site, 	CWA organizers 	at 	first
distributed 	leaflets 	at 	the very entrance 	to 	the 	hospital
14

grounds. 	Hospital 	Police Chief 	James 	Stratton 	requested 	that
they move 	slightly 	farther 	onto 	the 	grounds 	to 	keep 	traffic
from backing 	up 	onto 	Imola. 	The 	organizers 	acceded 	to 	his
request 	and 	there was 	no 	further 	incident 	at 	that 	location.
At 	Patton 	State Hospital, 	the 	traditional 	location for 	the
distribution 	of 	literature was 	at 	two 	speed bumps 	located 	on
Patton Avenue 	approximately 	300 	feet 	from the 	hospital
entrance. 	Some 70 	to 	80 	percent 	of hospital 	employees pass
over 	the 	speed bumps on their way to work. 	In the 	past, 	union
representatives 	or 	others who wished 	to 	distribute 	literature
at 	the 	speed 	bumps 	were 	required 	to 	sign a 	waiver 	stating 	that
they would 	not 	sue 	the hospital 	if 	they were 	injured.
Police 	protection 	and 	traffic 	safety at Patton 	Hospital 	are
the 	responsibility of 	the Department 	of 	Corrections.
James Wright, 	the correctional captain 	in charge of hospital
security, 	had been concerned 	about 	leafletting 	at 	the 	speed
bumps 	when 	he 	first 	observed 	the 	practice during 	1983.
However, 	Wright was 	new to 	Patton at 	that 	time and 	he
acquiesced 	in 	the 	approval 	by 	the 	hospital 	labor 	relations
office 	of 	leafletting 	at 	that 	location. 	In the 	spring 	of 	1985,
when 	CWA 	representatives 	again 	requested 	permission 	to 	leaflet
at 	the 	speed bumps 	on Patton Avenue, 	Captain Wright urged that
permission be 	denied. 	He 	advised hospital 	administrators 	that
the 	practice was 	dangerous 	to 	both 	leaflet 	distributors 	and
drivers 	and 	that 	it 	caused 	traffic 	congestion. 	CWA's 	request
was 	denied 	but 	the 	union was 	told 	it 	could 	distribute
15

literature 	in 	front 	of 	three 	buildings 	and 	in 	the 	hospital
parking 	lots. 	Virtually all 	Unit 	18 	members 	at 	Patton must
pass 	through 	entrances 	to 	the 	buildings 	where CWA was 	given
permission 	to 	leaflet.
On May 23, 	19 85, 	two CWA representatives 	commenced the
distribution of 	literature 	at 	the 	speed 	bumps 	and 	a 	nearby
intersection. 	Captain Wright 	and 	another 	officer 	intercepted
them, 	reminded 	them of 	the 	prohibition 	and 	invited 	them to
leaflet 	at 	the 	three 	approved 	locations. 	Although 	they
protested his 	action, 	the 	two 	organizers 	complied. 	There were
no 	other 	incidents 	involving 	leafletting 	at 	Patton.
ALLEGED 	INTERFERENCE/UNLAWFUL 	SUPPORT
Employer-Written 	Memoranda
The 	complaint 	alleges 	that 	the 	State 	gave unlawful 	support
to 	CAPT 	through 	the 	circulation 	of 	three 	employer-written
communications: 	A February 26, 	1985, 	letter by Ivonne Ramos
Richardson; 	a March 5, 	1985, 	memo by Gary Scott; 	and a June 4,
1985, 	memo by Denise Bates.
The 	first 	of 	these 	communications was 	written 	to
Kenneth C. 	Murch, 	a partner 	in the consulting 	firm of Western,
Murch and Associates. 	On February 15, 	1985, 	Mr. 	Murch had
notified Dennis 	Batchelder, 	chief 	of 	labor 	relations 	for 	the
State Department 	of 	Personnel Administration, 	of 	an 	impending
effort 	by CAPT to 	decertify CWA 	in State Unit 	18. 	Mr. 	Murch
requested 	access 	to 	State 	facilities, 	bulletin boards 	and 	other
methods 	of 	distributing 	literature.
16

For 	reply, 	Mr. 	Batchelder gave Murch's 	letter 	to
Ms. 	Richardson, 	a senior 	labor 	relations officer.
Ms. 	Richardson 	responded 	on February 26. 	Her 	letter 	identified
its 	purpose 	as: 	"Recognition of 	the California Association of
Psychiatric 	Technicians 	as 	an 	employee 	organization under
SEERA." 	It 	continued 	as 	follows:
This 	is 	to 	formally notify you 	that 	the
Department 	of 	Personnel 	Administration 	has
recognized your 	organization, 	the 	California
Association 	of 	Psychiatric 	Technicians
(CAPT), 	as an employee organization under
section 3513(a) 	of SEERA.
The 	letter 	then 	repeated 	information 	contained 	in 	the Murch
letter 	of 	February 	15, 	including 	the 	names 	and 	addresses 	of 	the
president, 	vice-president 	and 	secretary/treasurer 	of 	CAPT. 	The
letter 	concluded with 	an explanation 	of 	the 	limits 	of 	access
which would 	be 	extended 	to 	CAPT.
At 	the hearing, 	Ms. 	Richardson was 	questioned extensively
about her use 	of 	the word 	"recognition." 	It was 	not 	her
intention, 	she explained, 	to 	"recognize" 	CAPT as 	the exclusive
representative of Unit 	18 employees. 	Rather, 	she said, 	she
intended 	only to 	recognize CAPT 	as 	an employee 	organization 	for
the narrow purposes 	of 	section 3513(a) 	. 	She testified that 	in
listing 	the 	names 	and 	addresses 	of 	the CAPT officers 	she 	sought
merely 	to 	"confirm" 	the 	information 	contained 	in 	the Murch
letter.
During 	a 	negotiations 	meeting 	sometime 	in 	the 	spring 	of
1985, 	CWA negotiator Charlie Strong 	stated to Ms. 	Richardson
17
'

that her memo was 	"all 	over" 	the hospital 	system. 	Later, 	CWA
steward 	Barbara 	Long 	pinpointed 	the 	locations 	as 	Camarillo 	—
where 	she 	testified 	she 	saw the 	letter 	on 	two 	unit 	bulletin
boards 	— 	and 	Sonoma.
At Camarillo, 	Ms. 	Long testified, 	she saw the unit
supervisor, 	Willie Stephens, 	post 	the Richardson 	letter on one
unit 	bulletin board. 	Mr. 	Stephens 	denied 	the 	accusation. 	This
credibility dispute 	is 	resolved 	in favor 	of Mr. 	Stephens.
While 	I 	do 	not doubt Ms. 	Long's 	testimony that 	the Richardson
memo was 	posted 	at Camarillo, 	I 	find 	it 	hard to believe that
Mr. 	Stephens 	put 	it 	there. 	The 	letter was 	addressed to Ken
Murch of 	CAPT. 	There 	is 	no 	evidence 	it was 	ever 	circulated 	by
Ms. 	Richardson or 	any one else 	in management 	to unit
supervisors. 	I 	therefore doubt 	that Mr. 	Stephens had 	access 	to
the 	letter. 	I 	think 	it much more 	likely that 	the 	letter was
posted 	at Camarillo 	by someone 	from CAPT. 	Whatever Ms. 	Long
saw Mr. 	Stephens put on the board, 	I do not believe 	it was 	the
Richardson 	letter.
Gary 	Scott 	testified 	that 	he 	investigated 	Long's 	complaint,
but 	could 	never 	confirm 	that 	the 	Richardson 	letter 	had 	been
posted 	at Camarillo. 	At 	Sonoma, 	he determined that 	a
management memo 	had been posted, 	but 	that 	it was 	one written by
him. 	He directed 	that 	it be 	removed. 	Mr. 	Scott 	credibly
testified 	that 	the 	document 	he 	ordered 	removed 	at 	Sonoma was
his May 3, 	1985, 	memo on CAPT access 	rights, 	not the
controversial 	March 	5 	communication which 	contained 	the
18

Richardson 	letter 	as 	an 	attachment. 	No witness 	testified 	to
seeing 	the March 	5 	Scott memorandum posted 	at 	Sonoma 	or 	any-
other hospital.
The 	third 	controversial 	management 	communication was 	issued
by Denise P. 	Bates, 	labor 	relations 	coordinator 	at Metropolitan
State Hospital. 	On June 4, 	1985, 	she sent 	a memo 	to 	all
managers 	and 	supervisors 	at 	the hospital. 	The memo 	directed
that 	the 	name 	of 	"Lyle Vandagriff" 	be 	removed 	from the 	CWA 	job
steward 	list 	and 	listed 	the names 	of 	seven persons 	described 	as
newly 	"appointed 	job 	stewards 	for 	CAPT." 	Ms. 	Bates 	testified
that 	the 	purpose 	of 	her memo was 	to 	identify 	for managers 	the
persons 	from CAPT who would 	be 	authorized 	to 	post 	literature 	in
unit 	break 	rooms. 	She 	said 	she 	had 	received 	from
Mr. 	Vandagriff 	a 	copy of 	his 	resignation 	as 	a 	job 	steward 	and
believed 	it 	appropriate 	that 	managers 	also 	be 	informed 	of 	his
action. 	Although 	she 	neither 	anticipated 	nor 	requested 	that
her memo 	be posted, 	it was 	posted 	on 	a 	number 	of 	unit 	break
room bulletin boards 	and elsewhere. 	One 	supervisor, 	Harold
Weed, 	testified 	that 	he 	posted 	the memo 	himself. 	Because 	the
memo was 	sent 	only to managers 	and 	supervisors, 	it 	can be
inferred 	that 	managers 	and 	supervisors 	were 	principally
responsible 	for 	the 	posting.
Posting 	of 	the memo 	created 	both 	consternation 	and
confusion 	among 	some Unit 	18 	members 	at Metropolitan 	State
Hospital. 	Of particular concern was Ms. 	Bates' 	use of 	the term
"stewards" 	in describing 	the CAPT 	representatives.
19

Sylvia Kuchenmeister, 	a CWA 	representative 	at Metropolitan,
testified 	that 	she 	could 	not 	understand 	how CAPT 	could 	have
stewards when 	it was 	not 	the exclusive 	representative. 	"It was
like, 	. 	. 	. 	CAPT is in, 	and here's the people you contact
now," 	she testified. 	Ms. 	Kuchenmeister 	said that 	at 	least 	50
persons 	contacted 	her 	about 	the memo. 	She 	said 	people
understood 	the memo 	to mean 	that 	the 	State wanted 	CAPT 	as 	the
exclusive 	representative. 	She 	said 	she 	had 	to 	assure 	people
that 	CWA was 	still 	representing 	employees 	in Unit 	18.
Cynthia Downing, 	another Unit 	18 member 	at Metropolitan,
testified 	that 	following 	the 	posting 	of 	the Bates 	memo,
employees who 	had 	been 	active 	in CWA 	"declined 	to 	go 	to
meetings, 	they wouldn't help with leaflets, 	. 	. 	. 	help with
union activities, 	or anything 	at 	all." 	Joan Cardin, 	another
Unit 	18 	employee 	at Metropolitan, 	testified that 	the memo
created 	confusion 	regarding 	the 	status 	of 	Lyle Vandagriff. 	She
described 	conversations 	among Unit 	18 	members 	who
misinterpreted 	the memo 	to 	be 	a 	statement 	that Vandagriff was
resigning 	from CWA to 	go 	to 	CAPT.
Within a week of 	its distribution, 	the June 4 	Bates memo
had 	circulated 	to 	DMH 	labor 	relations 	chief Moore 	in
Sacramento. 	He contacted Ms. 	Bates, 	expressed concerns 	to her
over 	the use 	of 	the 	term 	"job 	stewards," 	and 	asked 	that 	she
issue a correction. 	On June 13, 	Ms. 	Bates 	sent to 	all
Metropolitan managers 	and 	supervisors 	a 	correcting 	bulletin
which described 	the use of 	the 	term 	"job 	stewards" 	as 	an
20

error. 	Her memo 	further 	stated that 	the CAPT 	representatives
were not 	job 	stewards, 	"and did not 	have 	any 	right 	to 	represent
employees 	in grievances 	or 	adverse 	actions." 	A corrected memo
relisting 	the 	names 	as 	"hospital 	employees 	representing 	CAPT"
was 	attached. 	The June 	13 	memo was 	posted 	on 	some unit
bulletin boards but, 	according to 	several witnesses, 	the
original 	memo 	remained 	posted 	in 	other 	break 	rooms 	throughout
the 	remainder 	of 	the 	election period.
Use 	of 	Hospital 	Facilities
CWA's 	rights 	to use hospital 	facilities 	are 	set 	out 	in 	the
contract 	between 	CWA 	and 	the 	State.7 This 	includes
7 The 	contractual 	provisions 	on 	the use 	of 	State
facilities 	is 	found 	in Article XII, 	section 3. 	It provides 	as
follows:
3. 	Use of 	State Facilities
(a) 	Meeting Rooms; 	The State will
permit 	use 	of 	certain 	facilities 	for 	CWA
meetings, 	subject 	to 	the operating needs 	of
the 	State. 	Requests 	for use of 	such State
facilities 	shall 	be made no 	less 	than
forty-eight 	(48) 	hours 	in advance to 	the
hospital 	labor 	relations 	coordinator 	or
designee. 	The 	hospital 	labor 	relations
coordinator 	or 	designee 	shall 	approve 	or
deny 	said 	request 	within 	twenty-four 	(24)
hours 	of 	receipt of 	request. 	Such approval
shall 	not 	be unreasonably cancelled. 	CWA
shall 	maintain 	such 	facilities 	in 	reasonable
order, 	and 	is 	expected to provide necessary
janitorial 	services 	so 	that 	the 	facility 	is
returned 	to 	a 	condition 	similar 	to 	that 	in
which 	it was 	found.
(b) 	Employee Organization Rooms: 	Those
hospitals 	which 	currently 	provide 	employee
organization 	rooms 	shall 	continue 	to do 	so.
Use 	of 	such 	rooms 	shall 	be 	in compliance
21

permission to use 	rooms 	for meetings. 	Access 	rights 	for CAPT
were 	identified 	in 	the May memoranda 	from Gary 	Scott 	and
James Moore. 	Although 	the memoranda 	do 	not 	specifically 	assure
CAPT of 	the 	right 	to use 	rooms 	for meetings, 	the privilege 	is
amply 	implied.
with 	applicable 	laws, 	hospital 	rules 	and
regulations. 	Any hospital which does 	not
currently 	provide 	an 	employee 	organization
room shall 	make 	every effort 	to 	do 	so.
CWA 	presented 	evidence 	to 	show 	that 	CAPT 	received
preferential 	treatment 	in the use of 	conference 	rooms 	at
Atascadero 	and 	Stockton, 	building 	lobbies 	at Atascadero 	and
Napa, 	and the public 	address 	system at 	Patton.
CWA 	steward 	Sandra 	Dunlea 	testified 	that 	prior 	to 	the
election 	campaign 	she 	had 	never 	encountered 	difficulty 	in
scheduling 	the use of 	a 	room at Atascadero. 	During 	the
campaign, 	she testified, 	she was 	told that 	rooms were booked 	as
much 	as 	several weeks 	in 	advance 	for meetings 	of managers 	and
executive directors 	and of 	CAPT. 	She 	said 	she was 	twice
refused 	use 	of 	the 	executive 	director's 	conference 	room 	and 	she
knows 	that 	CAPT was 	able 	to use 	the 	room at 	least 	twice during
the election campaign. 	On cross-examination, 	Ms. 	Dunlea 	said
she 	had 	never 	asked 	to 	review 	a 	reservation book or 	list when
she was 	turned down 	for 	a 	room. 	Asked 	if 	she ever 	sought 	rooms
on 	alternative dates 	from the original 	dates 	she 	requested, 	she
replied, 	"Sometimes 	I did, 	sometimes 	I didn't." 	Asked 	if 	rooms
22

were 	available on 	alternative dates, 	she 	replied, 	"Sometimes
they were, 	sometimes 	they weren't." 	Asked 	if 	she 	requested 	the
rooms 	within 	the 	two-weeks 	notice 	desired 	by 	hospital
management, 	she replied, 	"Sometimes I was, 	sometimes 	I wasn't."
Shirley McCall, 	labor 	relations 	analyst 	at Atascadero,
testified 	that 	all 	requests 	for 	union use 	of 	the 	executive
director's 	conference 	room were 	to 	be made with her. 	She
credibly 	testified 	that 	CWA did 	not 	request 	the 	use 	of 	the 	room
from her 	during 	the 	period 	of 	April 	through July 	1985.
Ms. 	Dunlea's 	glib testimony to 	the contrary is 	rejected 	as
cavalier 	and 	unpersuasive.
Regarding 	the 	Stockton conference 	room, 	CWA 	steward
Earl 	Lytle 	testified 	that 	he was 	denied use 	of 	the 	room whereas
CAPT got 	to use 	it 	on at 	least 	two 	occasions. 	He 	said he
requested 	the 	room on 	several 	occasions 	but was 	told 	that 	it
was 	not 	available. 	Mr. 	Lytle said that he went 	to 	a 	secretary
who 	handles 	the 	room assignments 	and, 	after examining 	a 	book,
she 	told 	him that 	the 	conference 	room was 	not 	available 	on 	the
dates 	he 	requested 	it. 	He 	then was 	granted the use of 	other
rooms 	at 	the hospital.
Hospital 	Administrator 	Harry Olson 	produced 	a 	policy under
which 	labor 	organizations 	at 	Stockton 	are 	required 	to 	request
meeting 	rooms 	from the 	labor 	relations 	officer. 	Olson, 	who
also 	serves 	as 	labor 	relations 	officer, 	said CWA made 	no
request 	to 	him for 	use 	of 	the 	conference 	room during 	the
election 	campaign. 	He 	said CAPT was 	the only employee
23

organization 	to 	use 	the 	room during 	that 	time 	and CAPT used 	it
only once. 	Mr. 	Olson 	said 	he 	personally 	assigned 	the 	executive
conference 	room to 	CAPT because 	it was 	appropriate 	for 	the
anticipated 	size of 	the 	gathering. 	Mr. 	Olson 	said 	the other
rooms 	available 	for meetings were 	too 	large 	for 	the 	25 	to 	30
employees 	expected 	by CAPT.
In 	addition 	to 	its 	purported 	problems 	in 	securing
conference 	rooms, 	CWA also 	contended 	that 	it was 	denied 	equal
access 	to 	the 	lobbies 	in 	the Atascadero 	and Napa 	administration
building. 	The Atascadero 	administration 	building 	lobby 	is
considered 	a 	uniquely good 	place 	for 	an 	employee 	organization
to 	distribute 	literature. 	The 	lobby 	feeds 	into 	a 	secured 	area
and 	virtually 	all 	employees who work 	in 	the 	treatment 	areas
must 	pass 	through the 	lobby. 	At 	shift change, 	an organization
distributing 	leaflets 	in 	the 	lobby can contact 	all 	employees
going 	to 	and 	from work.
It 	apparently 	is 	an 	established 	requirement 	that
organizations 	secure 	permission 	before 	distributing 	literature
in 	the 	lobby. 	But 	there 	is 	some dispute 	about whether
permission 	is 	required 	in 	all 	cases 	or 	only where 	an
organization plans 	to 	set up 	a 	table. 	Hospital 	Director
Sidney Herndon 	testified 	that 	because 	the 	lobby 	is 	used 	by
employees on breaks, 	hospital visitors 	and others, 	coordination
u
8 Permission was 	sought 	by CWA when 	it 	attempted 	to 	use
the 	lobby for 	organizing 	purposes 	on July 13, 	1983, 	well 	before
CAPT entered the scene. 	See CWA Exhibit No. 	48, 	at p. 	4.
24

is 	necessary when 	an organization wants 	to 	encroach on 	the
space with 	a 	table. 	Shirley McCall, 	labor 	relations 	analyst 	at
the hospital, 	testified 	that no 	reservation is 	necessary if 	an
organization desires 	to 	hand out 	literature 	in 	the 	lobby, 	but
not 	to use 	the table. 	Her 	testimony was 	effectively
contradicted, 	however, 	by documents 	submitted 	by the 	State
regarding 	a 	CSEA grievance 	on use of 	the 	lobby. 	The 	employer's
response 	to 	the CSEA grievance makes 	no 	distinction 	about 	the
use 	of 	a 	table. 	The 	response 	states 	simply that 	for 	"at 	least
nine years 	. 	. 	. 	[t]he practice has been that only one of these
groups 	at 	a 	time 	is 	scheduled 	in the 	lobby."
Sandra Dunlea, 	the CWA steward 	at Atascadero, 	testified
that 	on 	four 	or 	five 	occasions 	during 	the 	election 	campaign 	she
requested 	the 	right 	for 	CWA 	to 	distribute 	literature 	in 	the
lobby but was 	told 	that 	CAPT 	already had 	booked 	the 	space 	for
that day. 	On some of 	those occasions, 	she 	said, 	CAPT did not
appear. 	Ms. 	Dunlea 	testified 	that 	she did not 	always 	request
alternative 	dates 	for 	the use 	of 	the 	lobby because 	the
literature 	she 	sought 	to 	distribute was 	time 	sensitive 	and
would 	not 	have 	been useful 	for 	distribution on 	a 	different 	date.
Several 	witnesses 	testified 	that 	despite 	the 	restrictions
upon distribution of 	literature 	in the 	lobby, 	organizations
could 	freely distribute 	literature 	outside 	the 	door 	to 	the
administration building. 	Like the 	lobby, 	this 	location also 	is
passed 	by virtually every unit 	employee 	on 	the way 	to 	and 	from
a 	job 	shift. 	Sandra Dunlea 	testified 	that 	she 	had 	seen
25

employee 	organizations 	distribute 	literature 	outside 	the
entrance 	to 	the Atascadero Administration 	Building 	and was
aware of 	its 	potential.
Regarding 	Napa, 	CWA presented 	evidence 	intended 	to 	show
that 	CAPT was 	permitted 	to 	distribute 	literature 	in 	the 	lobby
of 	the 	administration building whereas 	CWA was 	denied 	that
right. 	Since at 	least 	1981, 	the distribution of 	literature 	in
the main building 	has 	been prohibited 	at 	Napa. 	Hospital
Administrator 	Friday 	testified 	that 	the 	ban was 	instituted
because 	"people 	[were] 	laying 	literature 	all 	over 	the 	lobby"
and 	"we 	had 	a 	real 	cleanup 	problem 	. . . " 	After 	CAPT 	commenced
its 	organizing campaign, 	Mr. 	Friday met with Earl Dale, 	the
CAPT 	representative 	at 	Napa, 	and outlined 	for 	him the
restrictions 	upon 	access. 	Nothing 	specifically was 	stated
regarding 	the 	administration 	building 	lobby.
At 	about 	7 	a.m. 	one 	payday morning 	during 	the 	spring 	of
1985, 	Mr. 	Dale distributed 	literature in the Napa
administration 	building 	lobby 	to 	night 	shift 	employees 	who were
waiting 	in 	the 	pay 	line. 	He 	testified 	that 	he 	did 	not 	know of
any 	prohibition 	against 	this 	conduct 	and 	he did 	not 	seek
permission prior 	to distributing 	the 	literature. 	According 	to
Dennis Linehan, 	a CWA steward at Napa, 	three hospital
administrators 	including Mr. 	Friday walked past Mr. 	Dale while
he was 	distributing 	literature. 	Mr. 	Linehan 	said 	the
administrators 	said nothing 	to Mr. 	Dale. 	Both Mr. 	Dale 	and
Mr. 	Friday denied 	that 	they had 	seen each 	other while Dale was
26

distributing 	literature. 	Debra 	Solarez, 	a personnel 	assistant
who 	distributed 	paychecks 	during 	the 	election 	period, 	testified
that 	she did 	not 	see Mr. 	Friday or 	any 	administrators 	present
during 	the 	time 	of 	check distribution. 	She 	testified 	that
administrators 	normally commence work 	at 	8:00 	a.m. 	and 	that 	she
usually 	is 	finished 	distributing 	paychecks 	by 	7:40 	a.m. 	I
conclude 	that 	if 	the 	administrators 	were 	present 	in 	the
administration building 	at 	the 	time Mr. 	Dale was 	distributing
CAPT 	literature, 	they did not 	see him.
Regarding 	Patton 	State 	Hospital, 	CWA presented 	evidence
intended 	to 	show 	that 	hospital 	administrators 	had 	permitted
CAPT 	to 	make 	an 	announcement 	over 	the 	public 	address 	system
while denying 	the 	same 	right 	to 	CWA. 	The 	evidence 	establishes
that, 	at 	least 	through 	1982, 	employees 	could call 	the hospital
telephone operator, 	who controls 	the public 	address 	system, 	and
request 	the 	reading 	of 	an 	announcement which would 	be 	heard
throughout 	the hospital. 	Later, 	this 	privilege was 	suspended
and 	employees 	thereafter 	were 	required 	to 	secure 	special
permission 	to 	have 	announcements 	read 	over 	the 	public 	address
system.
Sometime 	in 	late 	1984 	or 	early 	1985,9 an 	announcement was
made 	over 	the 	hospital 	loud 	speaker 	that 	there would 	be 	a 	union
meeting 	of 	psych 	techs 	at 	the hospital 	ball 	field. 	A time 	and
9NO 	witness 	could 	identify 	the 	exact 	date 	of 	the
announcement.
27

date 	for 	the meeting was 	given. 	Wedgeane McArthur, 	a CWA
steward, 	testified 	that 	the 	name 	CAPT was 	never mentioned 	as
part 	of 	the meeting. 	Tom Ogden, 	a 	psychiatric technician
called 	by CWA, 	testified 	that 	he 	attended 	the meeting 	and 	that
the 	discussion concerned 	"what 	could be 	done 	to 	get 	CWA out 	of
being 	our 	bargaining 	agent 	and 	elect 	somebody 	else."
Holmer 	Silver, 	a CWA steward 	at Patton, 	testified 	that
during 	both 	1984 	and 	1985 	CWA made 	requests 	to 	hospital
administrators 	to 	have messages 	read 	over 	the 	public 	address
system. 	The 	requests were declined.
Literature 	in 	the Nursing 	Station
Both 	the 	Department 	of Mental 	Health 	and 	the Department 	of
Developmental 	Services 	prohibit 	the 	circulation 	and 	display 	of
union 	literature 	in work 	areas. 	Unit 	nursing 	stations 	are work
locations 	from which 	union 	literature 	has 	traditionally 	been
banned. 	During the election campaign, 	however, 	union
literature did 	appear 	in 	the nursing 	stations 	at 	a 	number 	of
hospitals.
CWA, 	in 	an attempt 	to 	show favoritism toward CAPT 	in 	the
use of 	facilities, 	established 	the 	existence 	of 	CAPT 	literature
in one or more nursing 	stations 	in Agnews, 	Camarillo,
Lanterman, 	Metropolitan, 	Napa, 	Patton, 	and Sonoma State
Hospitals. 	But 	CAPT was 	not 	alone 	in bringing 	literature 	into
forbidden 	areas. 	State witnesses 	testified 	that 	they 	saw CWA
literature 	in work 	areas 	in Fairview, 	Metropolitan 	and 	Patton
State Hospitals.
28

Although CAPT 	literature 	remained 	in 	some 	nursing 	stations
for 	lengthy periods, 	there was 	evidence 	that 	a 	number 	of 	unit
supervisors 	attempted 	to 	keep 	literature 	out 	of 	their 	nursing
stations. 	Several 	unit 	supervisors 	testified 	that 	they
regularly 	told 	employee 	organization 	activists 	to 	remove 	the
literature 	from the 	nursing 	stations 	and 	place 	it 	in 	the unit
break rooms. 	Willie Stephens, 	a unit 	supervisor 	at Camarillo,
testified 	that 	if 	employees 	failed 	to 	remove 	the material 	he
would 	"throw 	it 	in 	the 	trash." 	Harold Weed, 	a unit 	supervisor
at Metropolitan, 	testified 	that 	he 	removed material 	from the
nursing 	station 	and 	posted 	it 	in 	the unit 	break 	rooms. 	At
Lanterman 	State Hospital, 	CWA 	representatives 	complained 	to
Nancy Irving, 	labor 	relations 	coordinator, 	about 	the 	regular
appearance 	of 	CAPT 	literature 	in 	the 	nursing 	station.
Ms. 	Irving 	contacted 	all 	program directors 	and 	told 	them to
have 	the 	offending 	material 	removed. 	Even CWA witness
Joe 	Hessen 	acknowledged 	that 	after 	one 	of 	his 	complaints,
Ms. 	Irving 	"evidently 	. 	. 	. 	got on somebody about 	it because
they 	quit 	bringing 	the 	stuff 	into 	the 	office 	and 	the 	nursing
station."
There 	is 	no 	persuasive 	evidence 	that 	management
representatives 	participated 	in 	the 	placement 	of 	CAPT material
in unit 	nursing 	stations. 	The 	record 	reflects 	that 	the
material 	which did 	appear 	in 	the 	nursing 	stations 	was 	brought
there 	by unit 	members 	who 	supported 	CAPT.
29

Reduction 	of 	Bulletin 	Board 	Space
The 	contract 	between CWA 	and 	the 	State 	provides 	in Article
XII 	that 	"CWA 	shall 	have 	designated 	CWA bulletin 	board 	space 	in
each 	unit 	break 	room and 	other 	designated 	areas 	to 	post
materials 	related 	to 	CWA business."10	10
This 	provision, 	CWA Chief 	Negotiator 	Charlie 	Strong
testified, 	grew out 	of 	a CWA demand 	for 	a 	bulletin board 	in
every break 	room or, 	where break 	rooms 	did not 	exist, 	in 	some
other 	location 	on 	every unit. 	He 	testified 	that 	the 	State
resisted 	the 	demand 	on 	the 	ground 	it would 	be 	expensive 	and
that 	in 	some 	units 	similar 	requirements 	by other 	unions 	could
lead 	to 	the 	installation of 	as many as 	four bulletin boards. 	As
a 	compromise, 	he 	testified, 	the parties 	agreed upon the
"designated CWA bulletin board 	space" 	language. 	Mr. 	Strong
10The 	contractual 	provision on bulletin boards 	is 	found
in Article XII, 	section 4. 	It provides 	as 	follows:
4. 	Bulletin Boards
CWA 	shall 	have 	designated 	CWA 	bulletin
board 	space 	in 	each unit 	breakroom and 	other
designated 	areas 	to 	post materials 	related
to 	CWA business. 	Any materials 	posted must
be 	dated 	and 	initialed 	by 	the 	CWA
representative 	responsible 	for 	the 	posting,
and 	a 	copy of 	all 	materials 	posted must 	be
distributed 	to 	the 	facility 	labor 	relations
coordinator 	or designee 	at 	the 	time 	of
posting. 	CWA agrees 	that 	nothing of 	a
libelous, 	obscene, defamatory, or of a
partisan political 	nature, 	or 	inconsistent
with 	the 	promotion of 	harmonious 	labor
relations 	between 	the 	State 	and 	CWA 	shall 	be
posted.
30

understood 	that 	language 	to 	mean 	that 	if 	there were 	no 	bulletin
board, 	space would be designated on the wall 	for CWA. 	Where
there was 	a bulletin board, 	he 	testified, 	"there would be
adequate 	space 	on 	there 	set 	aside 	for 	exclusive 	CWA use."
Mr. 	Strong's 	description of 	the 	negotiating 	history was 	not
contradicted 	by 	State witnesses 	who 	followed 	him.
Initially, 	CAPT was 	provided with no 	bulletin 	board 	space
in 	the 	hospital 	units. 	The 	organization's 	right 	to 	post
literature was 	confined 	to 	that 	of 	any outside 	organization,
such 	as 	the United Way or 	Red Cross. 	At 	a meeting with
Ivonne Richardson 	in March 	1985, 	CAPT 	representative Ken Murch
asked whether 	CAPT 	supporters 	within 	the 	hospitals 	could 	post
literature on the 	bulletin boards 	in 	their 	own units. 	He was
told 	they could 	not 	and would 	not 	be 	permitted 	to 	do 	so 	until
after CAPT had met 	its 	showing 	of 	interest 	requirements with
the PERB.
In 	early May 	1985 	the 	PERB 	determined 	that 	CAPT 	had
established 	the 	required 	showing 	of 	interest 	and 	commenced 	the
processing 	of 	a decertification election. 	Within days,
Gary Scott 	of 	DDS 	and James Moore 	of 	DMH 	sent 	their 	nearly
identical 	memoranda 	to 	their 	hospital 	labor 	relations
coordinators 	outlining 	increased 	access 	rights 	for 	CAPT.111	1
11I	ll n	rn 	relevant 	portion, 	the 	Scott 	and Moore memoranda
described 	the 	access 	rights 	for CAPT 	as 	follows:
Until 	the 	conclusion of 	the 	PERB 	election
process, 	the Department 	has 	agreed with the
31

These memoranda 	provided 	that 	representatives 	of 	CAPT 	be
granted 	the 	right 	to 	post 	materials 	"in 	living 	unit 	break 	rooms
CAPT 	to 	the 	following 	regarding 	access,
posting 	of 	materials 	and 	the use 	of 	State
facilities:
1. 	Representatives 	of 	the CAPT may be
granted 	access 	to 	non-work 	areas 	such 	as 	the
employee cafeteria(s), 	employee organization
room(s) 	and 	other 	non-work areas 	outside 	the
living units.
2. 	Representatives 	of 	CAPT may be granted
the 	use 	of 	employee 	organization 	bulletin
boards 	outside 	the 	living 	units 	for 	posting
of materials.
3. 	Hospital 	employees 	representing 	the 	CAPT
may be 	granted 	access 	to 	the 	employee 	break
- -room in the 	living units. 	One or more
(equal 	to 	the number 	of 	programs 	in the
hospital) 	employees 	may be designated 	by the
CAPT 	to 	be 	privileged with 	such 	access.
CAPT will 	submit 	a written verification of
their designation(s) 	to 	the Hospital 	Labor
Relations Coordinators. 	Persons 	so
designated must 	be 	employees 	of 	that
hospital. 	Changes will 	be kept 	to 	a minimum.
a. 	Notice of 	the 	intent 	to exercise
access 	privileges 	to 	unit 	breakrooms
must 	be 	provided 	to 	the 	appropriate
Program Director 	at 	least 	twenty-four
(24) 	and not more than seventy-two 	(72)
hours 	in advance.
b. 	Neither 	the designated 	employee
representative 	nor 	the employee 	to whom
literature 	is 	being 	distributed may 	be
on work time.
c. 	Except 	for 	the employee breakrooms,
the distribution or 	display of 	all
employee 	organization 	literature 	is
prohibited 	in 	all 	living 	units.
d. 	Copies 	of 	all 	employee organization
literature 	to 	be 	distributed 	or 	posted
32

and 	other 	areas 	outside 	the 	resident 	living 	units 	where 	such
employee 	organization material 	is 	normally posted." 	The main
impact 	of 	the 	change was 	to 	permit CAPT 	to 	post 	literature 	in
employee 	break 	rooms.
in 	the 	employee 	breakroom will 	be
provided 	to 	the 	Hospital 	Labor 	Relations
Coordinator 	in 	advance.
4. 	No 	access will 	be 	permitted 	during 	the
nocturnal shifts; 	and,
5. 	Space 	for 	posting 	CAPT materials will 	be
provided 	in 	living 	unit 	breakrooms 	and 	other
areas 	outside 	the 	resident 	living 	units
where 	such 	employee 	organization material 	is
normally 	posted.
Access 	for 	both 	employee 	organizations
should 	not 	be unreasonably denied; 	however,
access 	may be 	deferred 	for 	reasons 	related
to client care, 	privacy, 	safety, 	security or
other 	necessary business 	reasons.
Both Mr. 	Moore 	and Mr. 	Scott 	testified 	that 	they
specifically 	instructed 	hospital 	labor 	relations 	coordinators
not 	to 	divide up CWA space on the existing bulletin boards. 	"I
said use the wall 	next 	to 	it 	if 	that 	is 	the only option, 	that
the 	space 	should be 	as 	equal 	as we can make 	it, 	but 	not 	the
same," Mr. 	Moore testified. 	Similarly, 	Mr. 	Scott testified
that 	he 	personally 	told 	every 	labor 	relations 	coordinator 	"not
to 	alter 	CWA 	space 	in 	any 	respect." 	He 	testified 	that 	he 	told
the 	labor 	relations 	coordinators 	that 	CAPT could use 	space 	on 	a
wall 	next 	to 	the CWA bulletin board or, 	if 	the 	board was 	big
enough, 	it 	could be divided 	"as 	long 	as we didn't 	alter 	CWA
33

space." 	Testimony about 	practices 	in the various 	hospitals
showed 	that 	the 	instructions 	of Messrs. 	Moore 	and 	Scott
frequently were 	not 	followed.
At Agnews 	State Hospital, 	the 	record establishes, 	the
bulletin 	boards 	in units 	42 	and 	58 	had 	been used 	exclusively by
CWA prior 	to May 	1985. 	After 	that, 	CAPT material was 	posted on
both 	boards. 	Complaints 	by CWA 	representatives 	to 	hospital
administrators 	were 	unavailing.
At Atascadero 	State Hospital, 	CAPT 	commenced 	posting
materials 	on unit 	bulletin boards 	soon 	after 	it 	got 	access.
CWA 	steward 	Sandra 	Dunlea 	testified 	that 	the 	bulletin 	boards
were divided 	in 	some 	instances 	and 	in others 	CWA's 	material was
removed 	and 	placed 	on 	a 	clipboard. 	In 	still 	another 	situation,
CAPT was 	given 	its 	own board. 	Ms. 	Dunlea 	complained 	about
CWA's 	loss 	of 	space 	to 	Shirley McCall, 	labor 	relations 	analyst
at Atascadero. 	The 	two 	of 	them then 	inspected 	the 	bulletin
boards 	on 	a 	unit-by-unit 	tour 	of 	the hospital. 	Following 	her
inspection tour with Ms. 	Dunlea, 	Ms. 	McCall personally toured
each unit 	of 	the 	hospital 	and divided up 	the 	bulletin 	board
space. 	She 	testified 	that 	she went with 	the unit 	supervisor
and/or 	shift 	lead 	to 	review 	the bulletin 	board 	space 	available
"and marked off, 	either by tape or 	string, 	a 	space 	for CAPT to
post that would be equal 	to but separate from 	. 	. 	. 	CWA
space." 	The effect 	of 	this 	action was 	to 	reduce 	space
available 	to 	CWA.
34
'

At 	Camarillo 	State Hospital, 	CWA had 	a 	glass-enclosed,
locked 	bulletin 	board 	in 	the main 	lobby of 	the 	personnel
building. 	This 	board 	historically had 	been used 	only by CWA.
In 	the 	spring 	of 	1985, 	CWA 	steward Barbara 	Long 	discovered 	CAPT
literature 	inside 	the 	locked 	bulletin board. 	She 	removed 	it
and 	took it 	to 	the 	labor 	relations 	office. 	There, 	she was 	told
that 	CWA would 	have 	to 	share 	the 	board with CAPT 	and 	she 	could
not 	remove 	any CAPT 	literature.
On 	the Camarillo 	break 	room bulletin 	boards, 	CWA had 	not
traditionally enjoyed 	the 	same 	exclusivity 	as 	on 	the 	locked
personnel 	building 	bulletin board. 	Occasionally, 	both 	the
California 	State Employees' 	Association 	and 	the American
Federation of 	State, 	County 	and Municipal 	Employees 	would 	post
material 	on 	the 	same bulletin boards 	as 	CWA. 	On occasion,
restaurant menus 	and 	notices 	for 	employees 	to 	bid 	on new 	jobs
also were 	posted 	on 	the 	bulletin 	boards 	used 	by CWA.
There 	is 	some dispute 	about when 	the 	bulletin boards were
divided 	at Fairview State Hospital. 	Hal 	Britt, 	labor 	relations
coordinator 	at 	the hospital, 	testified 	that bulletin boards
were 	installed 	in 	1982 	and 	"probably" 	were 	divided 	around 	July
of 	that year. 	However, 	Steven Gillan, 	CWA steward at 	the
hospital, 	testified 	that 	the division took place 	in
March 	1985. 	He 	testified 	that 	he 	came 	to work one day 	and
found 	that 	the 	board 	had 	been divided with 	a 	piece 	of 	paper
stenciled 	at 	the 	top with 	the 	letters 	"CWA" 	and 	approximately
35
I

17 	to 	20 	inches 	set 	aside 	for CWA materials. 	This was 	less
than 	the 	space 	previously 	available 	to 	CWA.
This 	conflict 	in testimony 	is 	resolved 	in 	favor 	of
Mr. 	Gillan. 	Mr. 	Britt was 	hesitant 	and tentative 	in his
testimony 	about 	the 	timing 	of 	the division whereas Mr. 	Gillan
was 	definite. 	Moreover, 	Mr. 	Gillan testified that 	he was 	told
by his unit 	supervisor, 	Robert Mariner, 	that Mariner himself
divided 	the bulletin board. 	Finally, 	I 	find 	it 	hard 	to 	imagine
that 	the 	boards 	would 	have 	been divided 	in 	the 	fashion
described by Mr. 	Britt 	at 	a 	time when no 	election was 	pending
or 	anticipated.
At 	Lanterman 	State Hospital 	there 	are 	some 	40 	bulletin
boards 	ranging 	in 	size 	from two 	feet 	by two 	feet 	to 	four 	feet
by four 	feet. 	The hospital 	long 	has 	had 	a 	prohibition 	against
placing 	materials 	on 	the 	break 	room walls 	by 	the 	use 	of
adhesive tape. 	Therefore, 	when CAPT was 	granted 	access 	to 	the
units 	in May 	1985, 	the only space 	available 	for 	posting was 	the
existing 	bulletin boards. 	Nancy 	Irving, 	the 	labor 	relations
coordinator 	at 	Lanterman, 	testified 	that when 	she 	granted CAPT
access 	to 	the 	break 	rooms, 	she 	told 	the CAPT 	representative not
to 	post materials 	in CWA space. 	Where 	the boards were 	small,
she 	told 	the 	CAPT 	representative, 	CAPT 	literature would 	have 	to
be 	tacked on the edge of 	the 	bulletin board, 	but 	it 	could not
cover 	CWA materials.
Although Ms. 	Irving 	disavowed 	any 	intent 	to 	divide 	the
bulletin boards, 	a 	series 	of witnesses 	testified that 	on 	a
36

number 	of 	units 	the boards were 	in 	fact 	divided, 	either 	by tape
or 	felt 	tip pen. 	In each 	instance, 	the 	amount 	of 	space
available to CWA was 	reduced. 	George King, 	a CWA
representative, 	testified 	that 	the 	space 	available 	to 	post 	in
his 	unit 	diminished 	just 	as 	the 	amount 	of 	material 	from CWA
increased. 	He 	said 	that 	the 	spaces 	left 	for 	him 	"were 	getting
smaller 	and 	smaller" 	and 	that 	before 	people 	had 	a 	chance 	to
read what 	he 	had 	posted, 	he would 	have 	to 	post 	new material
over 	old material.
There was 	no 	persuasive 	evidence 	that 	the 	bulletin boards
were ever 	divided 	at Metropolitan State Hospital. 	Nonetheless,
it 	appears 	from the 	record 	that 	once 	CAPT gained 	the 	right 	to
post 	literature 	in the employee break 	rooms, 	there was 	some
incursion 	upon 	space 	formerly used 	only 	by CWA.
At 	Patton 	State Hospital, 	management 	took 	an 	affirmative
stand 	that 	it would 	not 	become 	involved 	in disputes 	between 	the
unions 	about 	the 	use 	of 	bulletin board 	space. 	After 	receiving
complaints 	from CWA 	about 	the 	removal 	of 	bulletin 	board
materials, 	Patton Executive Director Don Z. 	Miller 	sent 	a memo
to 	CWA 	representative 	Susan 	Sachen 	advising 	her 	of 	the
hospital's 	noninvolvement 	position. 12 He 	stated 	that
12	12CWA	cwA describes 	the Miller 	memorandum 	as 	"probably 	the
most 	egregious 	incident 	exposing 	Patton's 	disparate 	treatment"
of 	CWA over 	bulletin board 	space. 	The memo was 	sent 	in
response 	to 	CWA's 	complaints 	about 	the 	removal 	of 	CWA material
from the 	bulletin 	board 	by the 	alleged 	CAPT organizers. 	CWA
complains 	that 	the memo went 	"exclusively 	to 	CWA chastising
them 	for 	tearing 	down 	literature" 	and was 	not 	sent 	also 	to
37

administrative 	staff 	would 	not 	intercede 	on behalf 	of 	any
organization 	regarding 	bulletin 	board 	access 	"unless 	and 	until
there 	is 	a 	perceived 	impact 	on hospital 	operations."
CAPT. 	When 	read 	in context, 	the memo does 	not 	"chastise"
anyone. 	It 	is 	a 	response to CWA that 	the hospital did not
intend 	to 	become 	involved 	in 	disputes 	over 	literature 	removal
unless 	they became disruptive. 	Tricia Torres, 	labor 	relations
analyst 	at 	Patton, 	testified 	that 	the memo was 	sent 	only to 	CWA
because 	CWA was 	the 	only union which had 	complained. 	There 	is
nothing unreasonable 	in 	this. 	The hospital 	policy was
noninvolvement 	in disputes 	between unions 	about 	the 	removal 	of
literature. 	CWA complained 	about 	the 	removal 	of 	literature.
The hospital 	responded, 	in effect 	saying, 	"We're 	sorry. 	We
don't 	intend 	to 	become 	involved 	unless 	the 	disputes 	become
disruptive." 	CAPT had 	not 	complained 	and 	so 	there was 	no
reason 	to 	send 	a noninvolvement 	letter 	to CAPT.
When CAPT 	acquired posting 	rights 	in May of 	1985, 	it was
given no 	specific 	space 	upon which 	to 	post 	its 	leaflets 	and
other materials. 	As 	a 	result, 	CAPT posted 	literature on any
uncovered 	location 	of 	the 	CWA board 	or 	the 	CSEA 	boards.
Bulletin 	boards 	that 	formerly were 	used 	exclusively 	by CWA
became 	boards 	jointly shared with CAPT. 	The 	obvious 	impact 	of
the 	change was 	that 	the 	amount 	of 	space 	available 	to 	CWA was
diminished.
At 	Sonoma 	State Hospital, 	the bulletin boards 	apparently
were 	not 	divided 	during 	the 	election 	campaign. 	CWA had 	enjoyed
the 	exclusive use 	of 	some boards 	and wall 	space 	prior 	to 	the
election. 	After 	the campaign 	started, 	CAPT material was 	posted
on 	the 	boards 	formerly used 	exclusively by CWA. 	According 	to
the 	testimony of 	CWA 	steward Kathie 	Pinotich, 	the 	use 	of 	the
bulletin 	board 	by CAPT 	reduced 	the 	space 	available 	to 	CWA.
38

There 	is 	no 	evidence of 	incursions 	onto CWA bulletin board
space 	at Napa, 	Porterville 	and Stockton State Hospitals. 	CWA
makes 	no 	argument 	in 	its 	brief 	regarding 	bulletin boards 	at
these hospitals.
Despite 	the 	encroachments 	upon 	its 	bulletin 	board 	space,
CWA was 	clearly 	able 	to 	circulate 	its 	literature 	throughout 	the
two departments. 	A number 	of witnesses 	described 	the heavy-
flow of 	literature 	from CWA which 	they 	contrasted with 	a
trickle 	from CAPT. 	"CWA was 	much more visible," 	testified
Bobbie Reed, 	the hospital 	administrator 	at Agnews. 	"There were
newsletters, 	newspapers 	that were more 	frequent 	than CAPT."
David Hale, 	a unit 	supervisor at Patton State Hospital, 	said
that, 	"CWA had just about covered the whole hospital 	. 	. 	. 	You
really didn't hear too much about CAPT. 	. 	. 	. 	The majority of
it was 	CWA 	literature 	that you were 	handed 	or 	that you 	heard
about 	. 	. 	. 	." 	Naomi McKee, 	a Senior Psychiatric Technician at
Patton, 	testified 	that 	she 	got 	"bulletins 	passed out,
literature 	. 	. 	. 	things 	in the mail that 	I wasn't expecting
from CWA." 	By contrast, 	she 	said, 	she 	saw only one bulletin
regarding 	CAPT. 	Betty Dwire, 	a 	Senior 	Psychiatric Technician
at 	Sonoma State Hospital, 	testified that 	she 	saw "a 	lot" 	of CWA
material 	but 	only 	"a 	brochure or 	two" 	from CAPT. 	She 	said 	the
CWA 	literature 	"far 	outweighed 	the 	CAPT's." 	Harry Olson,
hospital 	administrator 	at 	Stockton, 	described 	a 	similar
imbalance. 	"I 	think CWA had certainly the 	. 	. 	. 	existing
organization," 	he said. 	"They 	. 	. 	. 	had a better opportunity
39
I

to 	share 	information within 	the 	facility 	and 	they used 	their
resources 	to do 	that." 	CAPT, 	he 	said, 	conducted 	"a very 	low
key election" 	at 	Stockton.
Statements 	by 	Supervisory 	Employees
In 	both written 	and 	spoken directives, 	management 	of 	the
two 	departments 	instructed 	all 	supervisors 	and managers 	to
remain 	absolutely neutral 	during 	the 	campaign. 	The 	demand 	for
"absolute 	neutrality" 	was 	set 	out 	in the May 3 	memorandum of
Gary Scott 	to 	DDS 	labor 	relations 	coordinators 	and 	the May 	6
memorandum of 	James Moore 	to 	DMH 	labor 	relations 	coordinators.
Typical 	of 	the 	instruction 	given 	to 	departmental 	managers 	is
that contained 	in 	a May 	6, 	1985, 	memorandum from Arthur Choate,
chief 	of 	the DDS 	labor 	relations 	branch. 	In 	the memo,
Mr. 	Choate explained, 	"The department's 	task 	is 	to 	stay neutral
and 	insure 	equal 	treatment 	of 	both parties 	in 	terms 	of 	access
and use 	of 	state 	resources." 	Witnesses 	from Agnews,
Atascadero, 	Napa, 	Patton and 	Stockton State Hospitals 	also
testified 	that 	supervisory 	employees 	at 	those 	hospitals 	were
instructed 	at 	meetings 	with management 	to 	remain 	absolutely
neutral 	during 	the 	election 	campaign.
CWA 	presented 	evidence 	about 	pro-CAPT 	statements 	allegedly
made 	by 	supervisory employees 	at 	six hospitals: 	Camarillo,
Fairview, 	Lanterman, 	Metropolitan, 	Napa and Stockton.
The 	incident 	at 	Camarillo was 	described 	by Jeanne M. 	Moon,
a 	Senior 	Psychiatric 	Technician. 	She 	testified 	that 	during 	the
40

spring 	of 	1985 	her 	unit 	supervisor 	told 	her 	and 	"wrote 	it 	up 	in
one of my evaluations" 	that,
. 	. 	. 	as 	long as 	I was going to be active in
CWA, 	that 	I 	should not 	count 	on becoming 	a,
going up 	the management 	ladder, 	becoming 	a
unit 	supervisor, 	that 	it would go 	against
me, 	the more active 	I was 	in the union.
At 	the 	time 	in question, 	Ms. 	Moon had only recently been
promoted 	to 	Senior 	Psychiatric 	Technician 	and was 	still 	on
probation. 	In rebuttal, 	the State 	introduced Ms. 	Moon's
performance evaluations 	for January 22, 	March 11, 	and June 20,
1985, 	together with 	a two-page 	letter of March 	5. 	Nowhere 	in
any of 	these 	documents 	is 	contained 	any 	statement 	resembling
that described 	in testimony by Ms. 	Moon. 	I 	conclude that 	the
incident 	simply did 	not 	happen.
At 	Fairview State Hospital, 	two managerial 	employees
allegedly made 	comments 	regarding 	CAPT 	to 	unit 	members.
Steven Gillan, 	a CWA steward, 	testified that 	after he had
represented 	an employee 	in 	a 	grievance meeting, 	he was 	sitting
alone with Richard 	Singleton, 	a program director. 	Mr. 	Gillan
said 	that 	he was 	asked 	by 	Singleton 	about 	how negotiations 	were
going 	"and 	referred 	in 	a 	very general way to 	the 	thought 	that
we 	probably were 	going 	to 	be 	beaten." 	The 	discussion 	then
turned 	to 	the 	subject 	of 	parity pay between 	Senior 	Psychiatric
Technicians 	and 	registered nurses. 	Mr. 	Gillan 	testified 	that
Mr. 	Singleton 	stated 	it 	"would be 	easier" 	for 	Senior
Psychiatric Technicians 	to 	achieve parity pay 	"if 	they were, 	in
fact, 	management people."
41

The 	other 	Fairview 	incident 	involved 	Jean Nelson, 	a 	unit
supervisor. 	Norman Montgomery, 	a witness 	for CWA, 	testified
that 	on one 	occasion 	at 	the change of 	shift Ms. 	Nelson 	stated
that, 	"CAPT 	should win." 	Mr. 	Montgomery said he 	interpreted
the 	statement 	as 	"not a prediction" 	but 	"more 	as 	advice than
even 	personal 	preference." 	He 	said 	she 	then 	repeated 	this
statement 	twice more.
On two 	later occasions, 	Ms. 	Nelson made similar 	statements
but was 	challenged by Montgomery. 	After 	that, 	she 	included 	a
disclaimer 	saying 	that 	"she 	believed" 	CAPT 	should win. 	In
those situations, 	Montgomery said, 	Ms. 	Nelson's 	remarks
suggested 	"personal 	opinion 	rather 	than 	policy." 	A 	combined
total 	of 	approximately 	six unit members 	in 	addition 	to
Montgomery overheard Ms. 	Nelson's 	remarks 	on the 	three
occasions 	that 	she 	commented 	about 	the 	election.
Two 	unit 	members 	from Lanterman 	testified 	that 	supervisory
employees 	had made 	comments 	to 	them 	regarding 	the 	election.
Debra 	Saviano, 	a CWA steward, 	testified that her unit
supervisor, 	David Campbell, 	told her 	that 	she 	should 	leave CWA
and 	that 	"CAPT was 	a much 	better 	organization." 	She 	testified
that 	he 	told 	her 	CWA didn't 	do 	a 	good 	job 	for 	employees 	and
that 	"CAPT was 	going 	to." 	Mr. 	Campbell was 	a unit member 	at
the 	start 	of 	the 	balloting 	and voted 	in 	the election. 	He 	then
was 	promoted 	and made his 	remark within 	the 	first week of
becoming 	a unit 	supervisor. 	Ms. 	Saviano 	testified that 	the
promotion was 	prior 	to 	July 15. 	Balloting ended July 17. 	It
42

appears, 	therefore, 	that Mr. 	Campbell's 	remark was made before
the 	end 	of 	the 	election. 	One 	other 	unit 	member was 	present
with Ms. 	Saviano when Mr. 	Campbell 	expressed his 	preference 	for
CAPT.
The 	unit 	member who 	reported 	the most 	extensive 	pro-CAPT
comments 	by members 	of management was 	Pattie Bartlett, 	a CWA
organizer 	at Lanterman. 	Ms. 	Bartlett 	identified 	five
management 	representatives 	as 	having made 	comments 	to 	her 	that
she 	considered 	to 	be pro-CAPT. 	She 	testified 	that 	Jan Gleim, 	a
nursing coordinator, 	said to her, 	"Oh, 	Pattie, 	don't you think
you're beating 	a 	dead horse with CWA?" 	Ms. 	Bartlett 	testified
that Ms. 	Gleim proceeded 	to 	identify other 	employees who were
involved with CAPT 	and 	stated, 	"Doesn't 	that 	seem 	like 	a 	much
better 	alternative." 	Ms. 	Bartlett 	testified 	that 	on 	another
occasion Ms. 	Gleim 	stated 	that 	she 	thought 	CAPT was 	going 	to
win 	in the 	long 	run 	and 	that Ms. 	Bartlett would 	be 	on the wrong
side.
Ms. 	Bartlett testified that Art Parks, 	the hospital
personnel 	officer, 	told 	her 	that 	he 	had 	noticed 	her 	name 	on 	the
steward's 	list 	and 	stated:
I 	am surprised 	that you 	are 	a 	steward with
CWA 	again. 	I would have 	thought you would
have 	gone with CAPT now that we're 	going 	to
have an election . 	. 	.
Ms. 	Bartlett testified that Wendell Goodwin, 	a program
assistant, 	also 	commented 	on her 	return 	to 	the 	CWA 	steward's
list. 	She testified that he 	said, 	"Pattie, 	you're back with
43
I

them again?" 	She 	also 	quoted 	him as 	saying 	that 	it was 	"too
much of 	a 	hill 	to 	climb," 	and 	"I 	think that CAPT will 	be much
easier 	to work with." 	She quoted Ken Harrison, 	a 	program
director, 	as 	saying to her, 	"You know, 	it's hopeless 	for CWA.
I'm an old union man myself, 	but 	it's 	hopeless."
Ms. 	Bartlett 	also quoted Sheri Ochoa, 	a program assistant,
as 	stating 	that 	it was Ms. 	Bartlett's 	choice 	to work with CWA
and 	that, 	"she 	respected 	that 	I was working 	real 	hard 	and 	that
I was 	the best 	thing that CWA had going 	for 	it, 	but 	that, 	you
know, 	that 	probably wouldn't 	be enough."
The comments made to Ms. 	Bartlett by the various
administrators 	must 	be 	considered 	in 	the 	context 	of 	her
previous 	and open 	falling 	out with CWA. 	Ms. 	Bartlett was 	an
active member 	in Concerned Psych Techs, 	an organization 	formed
within 	CWA 	to 	reform certain 	failings which 	its 	members 	had
discerned. 	Ms. 	Bartlett 	testified 	that 	she had publicly
criticized 	officers 	of 	CWA 	for 	alleged 	fiscal 	irregularities,
for 	a 	salary 	increase 	to 	certain officers 	and 	for what 	she
considered 	the 	unfair 	disqualification 	of 	her 	from 	running 	for
local 	office. 	She 	said 	some of 	her 	criticisms were 	on printed
material which was 	circulated within 	the 	hospitals. 	She
acknowledged 	that 	she 	had 	discussed with 	some members 	of
management, 	including Sheri 	Ochoa 	and Art 	Parks, 	her 	concerns
about 	internal 	CWA affairs. 	There 	also was 	evidence 	that 	over
a 	12 year period Ms. 	Bartlett 	had been 	a personal 	friend of
Jan Gleim. 	She had 	told Ms. 	Gleim about 	her 	falling 	out with
44

CWA 	and 	at 	one 	point 	she 	had 	stated 	that 	she was 	interested 	in
pursuing 	a 	career 	as 	a union 	representative and that, 	if 	the
opportunity came, 	she would work with CAPT. 	The evidence
establishes 	that 	virtually 	all 	of 	the 	comments 	made 	to
Ms. 	Bartlett 	by various 	management 	persons were made 	to 	her
alone 	and 	in 	the 	context 	of what 	the management 	persons 	could
reasonably have 	assumed 	to 	have 	been 	a 	personal 	friendship.
At Metropolitan 	State Hospital, 	CWA 	activist Michael 	Jolly
testified 	that 	he 	told 	his 	unit 	supervisor 	Dennis 	Masoner 	that
he was 	thinking 	about becoming 	active with CWA. 	Mr. 	Jolly
quoted Mr. 	Masoner 	as 	responding 	that, 	"Why even do 	that? 	CAPT
is 	going 	to win anyway. 	Everyone 	is 	going 	to CAPT. 	CWA is 	a
lost cause."
From Napa 	State Hospital, 	CWA called 	Bea 	Bloyd who
testified 	vaguely 	about 	management 	statements 	that 	her 	pay
would 	be 	affected 	if 	she were 	not 	represented 	by CWA. 	Pressed
on cross-examination 	for 	details, 	she 	indicated 	only her
nursing coordinator, 	Marguerite Selden, 	as 	the source of 	such a
statement. 	This occurred, 	she 	said, 	during a meeting conducted
by Ms. 	Selden in March of 	1985.
The 	State 	called 	a 	succession 	of witnesses 	who 	testified
about 	the meeting. 	None 	recalled 	any 	statement 	resembling 	that
alleged by Bea Bloyd. 	The closest was 	Hollis Williams, 	a
Senior 	Psychiatric 	Technician. 	She 	testified 	that 	during 	the
meeting 	it was 	announced 	that 	a 	State 	representative would
interview 	two 	Senior 	Psychiatric 	Technicians 	about 	their
45

duties. 	Ms. 	Williams 	testified 	that 	she 	asked whether 	the
planned 	interviews 	meant 	that 	Senior 	Psychiatric 	Technicians
would have 	a 	chance 	at 	parity pay with 	registered 	nurses.
Ms. 	Williams 	testified that the 	response was, 	"I 	don't 	know."
This 	credibility dispute 	is 	resolved 	in 	favor 	of
Ms. 	Williams. 	Ms. 	Bloyd's vague, 	over-stated testimony lacked
persuasive 	value. 	She was 	plainly 	irritated 	that 	her working
hours 	had been changed 	on 	several 	occasions 	by Ms. 	Selden 	and 	I
believe 	her 	testimony was 	influenced 	by 	her 	irritation.
From Stockton 	State Hospital, 	two 	employees 	testified 	that
Program Director 	Jake Myrick 	had 	made 	pro-CAPT 	comments.
Earl 	Lytle 	testified 	that 	he 	encountered Mr. 	Myrick 	in 	the
administration building. 	At 	that 	time, 	Lytle was 	going 	to
attend 	a CAPT meeting. 	Mr. 	Lytle 	said 	that Myrick 	asked 	him
where he was 	going 	and when Lytle 	told 	him to 	a 	CAPT meeting,
Myrick 	replied, 	"I 	hope they beat 	the hell 	out 	of you."
Mr. 	Lytle 	at 	that 	time was 	a CWA steward which was 	known 	to
Mr. 	Myrick. 	Mr. 	Lytle testified that 	although he 	and Myrick
have 	sometimes 	teased each 	other 	about 	the 	size 	of 	their
bellies, 	he did 	not 	understand Myrick's comment 	about 	CAPT 	to
be a 	joke.
Another 	Stockton CWA steward, 	Bob Barker, 	testified 	that
once 	following 	a 	grievance 	session Mr. 	Myrick 	stated 	that 	he
. 	. 	. 	was glad to see somebody else coming
in 	and 	fighting 	us 	because CWA had 	a 	good
contract 	and we were 	fighting 	it 	and 	forcing
it 	and he was 	tired of 	having 	to 	fight
trying 	to 	beat 	the contract.
46

Mr. 	Barker 	testified 	that Myrick was 	not 	laughing when he made
the 	comment 	and 	Barker 	understood 	the 	remark 	as 	serious.
Use 	of 	the Hospital Mail
Since 	at 	least 	1978, 	both the Department 	of Mental 	Health
and 	the 	Department 	of 	Developmental 	Services 	have 	prohibited
the use 	of 	the 	hospital 	mail 	for 	the delivery of 	personal
letters. 	This 	prohibition has 	included union 	literature 	sent
to employees 	at 	their work 	locations. 	The hospitals 	have
employed 	various 	techniques 	for 	handling 	mail 	received 	in
violation of 	the 	prohibition. 	These 	have 	included 	calling
individual 	employees 	to 	the mail 	room to 	pick up 	their 	mail,
placing 	all 	union mail 	in 	containers 	for 	distribution 	by union
representatives, 	and placing union mail 	in the union's 	own mail
box 	if 	it has 	one.
During 	the 	hearing, 	CWA presented evidence 	to 	show that
CAPT was 	preferentially permitted 	to 	send 	literature 	through
the hospital mail 	system at 	three hospitals, 	Lanterman,
Metropolitan 	and 	Sonoma.
During 	the 	first two weeks 	of 	June 	1985, 	CAPT sent 	a 	large
mailing 	to 	several 	hundred 	employees 	at 	Lanterman. 	Hospital
Labor 	Relations 	Coordinator 	Nancy 	Irving 	contacted 	DDS 	Labor
Relations 	Chief 	Gary Scott 	to 	request 	instructions. 	Mr. 	Scott
told 	her 	to 	refuse use 	of 	the hospital 	mail 	in 	accord with 	the
past 	practice. 	But, 	rather 	than calling employees 	to 	the mail
room, 	Mr. 	Scott 	told Ms. 	Irving to 	send the mail 	to 	the
individual 	programs 	and 	have 	the 	employees 	go 	to 	the 	program
47

office 	to 	pick 	it 	up. 	This would 	avoid 	the problem of 	having
several 	hundred 	employees 	disrupt 	the mail 	room.
The 	burden 	of 	determining 	the unit 	location of 	each
employee 	fell 	principally on Ms. 	Irving. 	Using 	a computerized
printout, 	she 	looked up 	the work address 	of 	each employee 	to
whom CAPT had 	sent 	a 	letter. 	She 	then bundled 	the 	letters 	and
sent 	them to 	the 	individual 	program directors who 	in 	turn
notified 	the 	employees 	they had mail 	in 	the 	office. 	The
literature was 	not 	distributed 	through 	the 	hospital 	mail 	system.
While Ms. 	Irving was 	in the process 	of 	looking up 	the
employee work 	locations, 	CWA 	representative George King
happened 	into 	her 	office. 	When he 	saw what 	she was 	doing, 	he
requested 	that 	she 	look up 	the work 	locations 	for 	employees 	who
had 	been 	sent 	a 	similar mailing 	of 	CWA material. 	The CWA mail
had 	been deposited 	in CWA's mailbox 	at 	the 	hospital 	for
distribution by CWA 	representatives. 	It 	had 	not 	been possible
to 	dispose 	of 	the 	CAPT mailing 	in 	the 	same manner 	because
Ms. 	Irving 	earlier 	had 	rejected CAPT's 	request 	for 	a 	hospital
mailbox. 	Ms. 	Irving 	told Mr. 	King 	she would consider his
request 	to 	look up 	addresses 	for CWA. 	A week 	later, 	after
conferring with Gary Scott, 	she 	informed Mr. 	King 	that 	since
she 	had 	looked up 	the addresses 	for CAPT, 	she would do 	the 	same
for CWA. 	By that 	time, 	Mr. 	King 	stated, 	he already had
distributed most 	of 	the 	CWA mailing.
Two 	CWA witnesses 	from Metropolitan 	State 	Hospital
testified 	that 	they 	several 	times 	saw CAPT material 	in 	State
48

interoffice 	envelopes which were 	delivered 	to 	their 	units 	with
the mail. 	Neither 	employee 	knew who 	placed 	the 	CAPT 	literature
in the 	envelopes. 	There 	likewise was 	no 	indication 	that
hospital 	management 	knew of 	this 	use 	of 	the mail 	system.
Johnie Savee, 	the mailroom assistant 	at Metropolitan, 	testified
that 	although 	hospital 	policy prohibits 	the distribution 	of
union 	literature 	through the mail 	system, 	she was 	not
authorized 	to 	open 	interoffice envelopes. 	It 	is 	possible 	for
any employee 	to 	place material 	in 	an 	interoffice 	envelope 	and
drop 	it 	into 	the 	hospital 	mail 	system.
A witness 	from Sonoma 	State 	Hospital, 	CWA 	representative
Kathie 	Pinotich, 	testified 	that 	she 	found CAPT 	literature 	in
her 	unit 	and 	"it 	appeared" 	that 	the 	literature 	had 	been
distributed 	through the mail 	system. 	The 	literature, 	a 	group
of 	envelopes with 	a CAPT 	return address, 	was 	addressed to
individual employees by name. 	In ink, 	the employees' 	unit
addresses were 	entered 	on 	the 	face 	of 	the 	envelopes.
Ms. 	Pinotich 	theorized 	that 	the CAPT 	literature 	came 	through
the mail 	system because 	the 	unit 	numbers 	resembled 	those
typically 	affixed 	in 	the 	hospital 	post 	office.
However, 	Joanne Marino, 	the Sonoma mailroom supervisor 	at
the 	time, 	credibly 	testified 	that 	she did 	not 	place 	the unit
addresses 	on 	any CAPT envelopes. 	Further, 	she 	testified 	that
it was 	her 	regular 	practice 	to 	notify hospital 	administrators
whenever 	she 	received what 	she 	believed 	to 	be 	personal 	mail.
49

Dan Sorrick, 	the CAPT 	representative 	at Sonoma, 	testified
that 	he 	addressed 	and 	distributed 	CAPT mail 	during 	the 	election
campaign 	after 	one 	of 	the 	hospital's 	executive 	secretaries 	told
him 	it 	could not 	go 	through the hospital mail. 	He described
the mail 	as 	a 	collection of 	envelopes 	between 	four 	and 	six
inches 	thick. 	He went 	through 	the 	envelopes 	and with 	the
assistance 	of 	other 	CAPT 	supporters, 	sorted 	and 	delivered 	the
mail 	to 	the 	individual 	employees.
Unit 	Modification
On March 29, 	1985, 	the State Department of Personnel
Administration 	filed 	a 	unit 	modification 	petition 	seeking 	to
remove 	from Unit 	18 	the 	job classification of 	Senior
Psychiatric 	Technician. 13 The 	petition was 	filed 	during 	the
window period, 14 near 	the 	expiration date 	of 	CWA's 	first
contract with 	the 	State.
DMH 	and 	DDS 	administrators 	had 	long 	pushed 	for 	removal 	of
Senior 	Psychiatric Technicians 	from the unit. 	Originally, 	the
State 	had 	opposed 	placement 	of 	the 	Senior 	Psychiatric
Technicians 	within 	the 	unit 	but 	had 	conceded 	the 	point 	in 	1980
during 	meetings 	with 	the 	three 	unions 	then 	vying 	to 	represent
1 3 The petition was 	filed under 	title 	8, 	Cal.
Administrative Code, 	section 32781 	(b) 	(5) 	(C).
1 4 The 	SEERA window period 	is 	defined under 	title 	8, 	Cal.
Administrative 	Code 	section 	40130 	as 	"the 	29-day period which
is 	less 	than 	120 days, 	but more 	than 90 	days 	prior 	to 	the
expiration date 	of 	a memorandum of 	understanding 	between 	the
employer 	and 	the 	exclusive 	representative."
50

hospital 	employees. 	The 	concession on unit 	placement 	did 	not
sit well with DMH 	and DDS 	officials, 	and 	they 	agitated during
the 	ensuing 	years 	for 	the 	removal 	of 	Senior 	Psychiatric
Technicians.
In 	response to pressures 	from the two departments, 	the
State 	proposed 	during 	the 	1983 	negotiations 	to 	remove 	Senior
Psychiatric Technicians 	from the unit. 	However, 	the proposal
was 	dropped 	at 	the 	negotiating 	table 	because 	the 	Department 	of
Personnel Administration was 	unwilling 	to 	take 	the 	issue 	to
impasse. 	The 	following year, 	the executive directors 	of DMH
and 	DDS 	renewed 	their 	campaign 	and 	pressed 	hard 	for 	the 	filing
of 	a 	unit 	modification 	petition during 	the 	impending window
period. 	Initial 	conversations 	about 	a 	unit modification
commenced 	between 	the 	departments 	and 	DPA 	as 	early 	as 	November
1984. 	After 	an 	investigation, 	the Department 	of 	Personnel
Administration 	became 	convinced 	that 	sufficient 	evidence 	could
be 	garnered 	to 	support 	the 	removal 	during 	a 	hearing.
Accordingly, 	a 	timely unit modification petition was 	filed.
CWA's 	answer 	to 	the 	proposed 	unit 	modification was
immediate and negative. 	In a 	formal 	response to PERB, 	CWA
argued 	that 	the 	Senior 	Psychiatric 	Technicians 	did 	not 	perform
the 	statutory duties 	of 	a 	supervisor. 	CWA characterized 	the
proposal 	as 	"a 	frivolous 	and 	inappropriate 	attempt 	to 	gut 	the
unit 	of 	its 	leadership 	and 	reduce 	its 	bargaining 	strength." 	A
CWA newsletter 	quoted 	Charlie 	Strong 	as 	saying 	the 	union would
51

"let 	the 	Senior 	Psych Techs 	out when hell 	froze 	over." 	CWA's
opposition was 	widely publicized 	throughout 	the 	State 	hospitals,
CAPT's 	position was 	ambivalent. 	At one point, 	CAPT
officers 	and 	directors 	suspended 	discussion 	about 	the 	proposal
during 	a 	board meeting 	because 	the 	issue 	had 	become 	so
divisive. 	Some 	officers were 	opposed; 	some 	supported the
change. 	Because members 	of 	the CAPT board could not 	reach 	a
consensus, 	CAPT as 	an organization took no position. 	However,
individual 	CAPT 	leaders 	made 	their 	personal 	views 	known.
Jay Salter, 	interim president 	of CAPT, 	stated his 	personal
opposition 	to 	the unit modification during 	a 	debate with CWA
Representative John Tanner. 	The debate, 	which was 	conducted 	in
early June, 	was 	videotaped 	and 	shown widely during 	campaign
gatherings 	at 	a 	number of 	hospitals.
Thirty-eight witnesses 	from nine 	hospitals 	testified 	about
the 	impact 	of 	the 	unit modification petition 	on 	Senior
Psychiatric 	Technicians. 	The witnesses 	revealed widely varying
degrees 	of 	knowledge 	about 	the proposal. 	Some could 	trace 	the
petition 	from the 	inception of 	efforts 	by the 	State 	to 	remove
Senior 	Psychiatric 	Technicians 	from the unit. 	Others 	did 	not
know 	that 	a 	unit 	modification 	petition 	had 	been 	filed 	until
well 	after 	the election was 	over. 	Many witnesses 	described
conversations 	in which 	Senior 	Psychiatric 	Technicians 	discussed
the 	proposed 	unit 	modification 	and 	the 	positions 	of 	the
competing unions 	as 	a 	significant election 	issue. 	Most 	of
these witnesses 	were 	called 	on behalf 	of 	CWA 	and 	testified 	to
52

hearing 	pre-election 	statements 	by 	Senior 	Psychiatric
Technicians 	who 	planned 	to 	vote 	for 	CAPT 	because 	they believed
CAPT would 	agree 	to 	let 	them out 	of 	the 	bargaining 	unit.
Persons 	who 	espoused 	such 	a 	view purportedly were motivated 	by
a 	belief 	that 	removal 	of 	Senior 	Psychiatric Technicians 	from
the 	bargaining 	unit 	would 	lead 	to 	parity pay with 	the 	job 	class
of 	Registered Nurse 	II. 	Both 	Senior 	Psychiatric 	Technician 	and
Registered Nurses 	II 	serve 	as 	shift 	leads 	in the 	State
hospitals. 	However, 	the nurses 	are paid at 	a 	substantially
higher 	rate 	than 	Senior 	Psychiatric 	Technicians.
On or 	about May 2, 	1985, 	PERB Representative Terry Lindsey
conducted 	a 	meeting 	among 	the 	participants 	in 	the
decertification election. 	During 	the meeting, 	Mr. 	Lindsey made
a 	comment 	indicating 	that 	the 	unit 	modification 	could 	have 	an
impact 	upon 	the 	counting 	of 	ballots 	in 	the decertification
election. 	At 	that 	point, 	one of CWA's 	representatives
suggested 	that 	the 	State withdraw 	the 	unit 	modification
petition. 	Dennis 	Batchelder, 	chief 	of 	labor 	relations 	for 	the
Department 	of 	Personnel Administration, 	rejected 	the
suggestion. 	However, 	the 	idea 	arose 	again in early June, 	after
a 	telephone 	conversation 	between Janet 	Caraway, 	PERB 	chief 	of
representation, 	and 	Ivonne Richardson. 	The call was 	placed 	by
Ms. 	Caraway, 	who 	asked whether 	the Department 	of 	Personnel
Administration 	"was 	serious" 	about 	the unit modification. 	The
State 	previously 	had 	filed 	and 	then withdrawn 	unit 	modification
petitions, 	and Ms. 	Caraway 	wanted to 	know if 	the pattern would
53

be 	repeated. 	Ms. 	Richardson 	responded that 	the State was
serious 	and 	intended 	to 	go 	forward with 	the unit 	modification.
Ms. 	Caraway then 	suggested 	that 	the 	pendency of 	the 	unit
modification 	petition 	could 	delay 	a 	final 	vote 	count 	after 	the
election. 	Ms. 	Richardson shared 	these concerns with
Mr. 	Batchelder.
On June 	18, 	Ms. 	Caraway called Mr. 	Batchelder 	and stated
that 	the 	PERB would 	challenge 	the 	eligibility of 	the 	Senior
Psychiatric Technicians 	to vote 	in 	the election. 	She 	asked 	him
to 	prepare 	a 	list 	of 	the names 	of 	the 	Senior 	Psychiatric
Technicians 	to 	assist 	in the challenging 	of 	the ballots.
Mr. 	Batchelder 	replied that 	the State, 	in order 	to 	avoid the
delay, 	might withdraw the petition. 	Ms. 	Caraway said that 	if
the 	State 	intended 	to withdraw, 	it would 	be better 	to 	do 	so
before 	the vote 	count. 	She 	said 	that 	it would be more
difficult 	to withdraw after 	the 	initial 	tally because, 	by
withdrawing 	at 	that 	point, 	the 	State could 	appear 	to 	favor
whichever organization was 	ahead. 	Mr. 	Batchelder 	testified
that 	the 	basic 	idea 	he 	drew 	from 	the 	conversation was 	that
withdrawal 	of 	the 	unit 	modification 	petition would make 	the
election 	go much 	smoother 	and 	quicker.
Mr. 	Batchelder 	notified 	the departments 	that 	he was
considering 	withdrawing 	the 	unit 	modification 	petition. 	Both
departments 	opposed withdrawal 	and 	urged 	that 	the 	process 	be
pursued 	to 	its 	completion. 	In 	a 	second 	telephone conversation
on June 20, 	1985, 	Ms. 	Caraway repeated her plan to challenge
54

all 	Senior 	Psychiatric Technician voters 	in the election. 	She
also 	said 	that withdrawal 	of 	the 	unit 	modification 	petition
would 	"really help 	speed 	up 	the 	overall 	election 	process."
Subsequently, 	Mr. 	Batchelder 	decided 	that 	he wanted 	the 	status
of 	the Unit 	18 	exclusive 	representative 	to 	be quickly
resolved. 	Under his 	instructions, 	Ms. 	Richardson withdrew the
unit modification proposal 	on June 27, 	1985.
It was 	clear 	from both CWA and 	State witnesses, 	that
whatever 	the 	impact 	of 	the proposed unit modification, 	it was
but 	one 	of 	many 	issues 	in 	the 	campaign. 	A number 	of witnesses
testified 	that 	they 	overheard 	and/or 	participated 	in
pre-election 	discussions 	about 	the 	alleged misuse 	of 	dues 	money
by CWA officers, 	the 	trusteeship which had 	been 	imposed upon
the 	local 	by CWA international 	officers, 	perceived 	failures 	of
local 	officers 	to 	effectively 	represent 	employees 	in 	grievances
and other 	representation questions, 	the 	closure of 	a 	CWA office
near 	Lanterman 	State 	Hospital, 	the 	alleged 	unavailability of
CWA 	job 	stewards, 	and 	the 	purported 	failure of 	CWA officials 	to
return phone 	calls.
Internal 	problems within CWA were widely 	aired 	in 	a
May 23, 	1985, 	memo 	from John Tanner, 	assistant director of
organizing, 	to all members of 	the 	local. 	In that memo, 	he
stated 	that 	his 	review of 	representation, 	financial 	affairs,
and 	the 	overall 	operation of 	the 	local was 	"disappointing" 	and
that 	"We must 	all 	admit 	that 	the 	psych 	tech union 	has 	drifted
away 	from 	the 	purpose 	and 	principles 	that 	guided 	our 	union 	in
55

1980-81." 	His 	letter 	stated 	that 	the 	local 	union 	officers
"have 	acted 	in 	a manner 	that 	benefited 	their 	personal,
political 	positions 	over 	the needs 	of 	the members" 	and 	that
they 	had 	"failed 	to 	lead 	the membership 	in 	the 	strong 	and
democratic manner we 	all 	envisioned." 	The 	letter 	then
described 	the 	various 	changes which 	had 	taken 	place 	in 	the
local 	leadership 	in 	an 	effort 	to 	cure 	the 	problems 	which 	the
survey and Mr. 	Tanner's 	review had disclosed. 	It was 	apparent
from the 	testimony 	that 	the 	problems 	identified 	in 	the 	Tanner
memo 	were 	fully discussed 	among 	psychiatric 	technicians 	during
the 	election campaign.
OBJECTIONS 	TO 	THE 	ELECTION
CAPT As 	an Employee 	Organization
Except 	for 	one, 	CWA's 	objections 	to 	the election 	are
essentially 	identical 	to 	the unfair 	practice 	charges. 	Unique
is 	the 	contention 	that 	the 	California Association of
Psychiatric 	Technicians 	is 	not 	an employee 	organization 	as
defined 	in 	SEERA. 	Although 	this 	objection was 	dismissed 	at 	the
conclusion of 	CWA's 	case-in-chief, 15 it 	is 	necessary to 	set
out 	the 	findings 	of 	fact 	upon which 	the 	dismissal was 	made.
CAPT, 	as 	an organization, 	is the product of dissatisfaction
which began 	to 	grow 	among 	CWA members 	as 	long 	ago 	as 	December
1983. 	Ultimately, 	some CWA members 	formed 	an organization
known 	as 	Concerned 	Psych Techs 	to 	press within CWA 	for 	change.
1 5 See Reporter's Transcript, Vol. 	13, 	p. 	14
56

By the 	fall 	of 	1984, 	Linda Pinkerton, 	an activist 	in Concerned
Psych Techs, 	became 	so dispirited with CWA that 	she 	attempted
to 	file 	a 	decertification petition with 	the 	PERB. 	The
document was 	rejected because 	it was 	not 	timely 	filed. 	She
retained 	a 	list 	of 	those who 	had 	signed her 	petitions, 	and 	that
list 	was 	used 	by CAPT 	in 	the 	decertification 	effort which
resulted 	in 	the 	1985 	election.
One 	of 	the 	psychiatric 	technicians 	who 	had worked with
Ms. 	Pinkerton 	in the decertification effort was 	Dan Sorrick.
Sometime 	in the 	second half 	of 	1984, 	Mr. 	Sorrick's 	name was
passed 	on 	to 	Dan Western 	by 	a 	field 	representative 	from 	the
California 	State Employees' 	Association. 	Mr. 	Western had been
the 	general 	manager 	of 	CSEA until 	he 	left 	the 	organization 	in
July 	1984. 	Mr. 	Western 	testified 	that 	it was 	common knowledge
when 	he was 	at 	CSEA that 	a 	number 	of 	psychiatric 	technicians
were 	dissatisfied 	with 	CWA 	and 	that 	the 	organization 	might 	be
susceptible 	to 	decertification. 	He 	testified 	that 	in November
1984, 	he 	called Mr. 	Sorrick and 	arranged 	to meet with him in
Vacaville. 	During 	the meeting, 	the 	two discussed 	the potential
for 	the 	decertification 	of 	CWA 	as 	the 	exclusive 	representative
for Unit 	18. 	Mr. 	Sorrick told Mr. 	Western that he would 	set up
a 	meeting 	of 	persons 	interested 	in 	pursuing 	the 	decertification
and 	that 	Western 	should 	attend 	and 	assist 	in 	forming 	an
organization 	for 	that 	purpose.
In 	late December 	1985 Mr. 	Western 	invited Kenneth Murch,
also 	a 	former 	employee of 	CSEA, 	to 	join with him in 	a
57

consulting 	firm 	to 	offer 	assistance 	to 	employee 	organizations.
The 	two 	formed 	a 	partnership 	and 	divided 	responsibilities 	to
prepare 	for 	the meeting with 	the 	employees 	who 	were 	considering
the decertification of 	CWA.
The meeting was 	scheduled 	by Mr. 	Sorrick 	for
January 26, 	1985, 	in Bakersfield. 	In preparation for the
meeting, 	Mr. 	Western hired 	an 	attorney to draft 	proposed
bylaws, 	constitution, 	and articles of 	incorporation for 	any
organization which might 	be 	formed 	at 	the 	Bakersfield meeting.
He 	also 	drafted 	an 	agreement 	to 	spell 	out what 	services would
be 	rendered 	by Western, 	Murch 	and Associates 	to 	the 	new
organization and 	to 	spell 	out 	the 	fees. 	Mr. 	Western prepared 	a
document which 	outlined 	a 	plan 	for 	the 	decertification 	of 	CWA.
Approximately 	eight 	psychiatric 	technicians 	attended 	the
meeting. 	The 	only one of 	them who 	knew Mr. 	Western was
Mr. 	Sorrick. 	The meeting was 	conducted 	in three parts. 	In the
first 	part, 	the 	participants 	became 	acquainted 	and 	expressed
interest 	in 	forming 	an organization. 	In the 	second part,
interim officers were chosen, 	with Mr. 	Salter 	picked 	as 	the
interim president. 	Also, 	during 	the 	second part 	of 	the
meeting, 	the group 	took the 	initial 	steps 	to 	form a
corporation. 	In the third part, 	the corporation was 	formally
organized. 	A 	board 	of 	directors 	and 	executive 	committee was
elected 	from 	among 	the 	participants. 	A constitution 	and 	bylaws
was 	adopted 	following 	the draft 	prepared 	at 	the 	request 	of
58
'

Mr. 	Western. 	The consulting 	contract was 	adopted with 	the
modifications 	discussed 	and 	agreed 	to 	by 	the 	psychiatric
technicians 	in 	attendance. 	The 	attendees 	chose 	a 	name 	for 	the
organization 	and 	approved 	a 	strategy 	for 	the 	decertification 	of
CWA.
Following 	the meeting, 	the 	participants 	returned 	to 	their
respective hospitals, 	recruited members, 	and solicited
signatures 	for 	the 	decertification of 	CWA. 	The 	CAPT organizers
continued 	to 	have 	regular monthly meetings 	to 	discuss 	strategy
for 	the decertification campaign. 	At 	one of 	those meetings, 	in
April 	1985, 	the 	consultants' 	agreement was 	revised 	and 	signed.
CAPT has members who 	are employees 	of 	the 	State 	of
California. 	A membership 	list was 	kept 	by Mr. 	Salter 	and
Ms. 	Pinkerton. 	The purpose of CAPT as 	outlined 	in the
February 15, 	1985, 	letter 	from Kenneth Murch to
Dennis 	Batchelder 	is 	"to 	represent 	the 	interests 	of 	psychiatric
technicians 	and 	related 	classifications 	in 	all 	matters 	relating
to 	negotiations 	of wages, 	hours 	and other 	terms 	and 	conditions
of 	employment." 	This 	purpose 	is 	further 	apparent 	in 	the
consulting 	contract 	between CAPT 	and Western, 	Murch 	and
Associates 	under which 	the 	consultants 	agree 	to 	represent 	the
organization 	in 	"contract 	negotiations," 	"arbitration
representation," 	"punitive 	action 	representation," 	"consulting
or 	contract 	enforcement," 	and 	other 	representational
activities. 	CAPT's 	purpose 	also 	is 	described 	in 	a
59

March 5, 	1985, 	letter to members of Unit 	18 which states 	that
the 	organization was 	"founded 	to 	replace 	CWA 	as 	the 	exclusive
representative of Unit 	18."
LEGAL 	ISSUES
1) 	Did 	the 	State 	fail 	to 	negotiate 	in good 	faith 	and
thereby violate 	SEERA section 3519(c) 	and, 	derivatively,
sections 	3519(a) 	and 	(b) 	by making unilateral 	changes 	in:
A) 	Access 	policy
B) 	Telephone 	use 	policy.
C) 	Permissible 	locations 	for 	the distribution 	of
literature.
2) 	Did 	the 	State 	interfere with 	the 	protected 	rights 	of
unit members 	and CWA and/or 	provide unlawful 	support 	to 	CAPT,
thereby violating sections 3519(a), 	(b) 	and 	(d) 	by:
A) 	Posting 	employer-written memoranda 	which 	imply
support 	for 	CAPT over 	CWA.
B) 	Granting 	CAPT 	the use 	of 	State 	facilities 	denied
to 	CWA 	and 	authorizing 	CAPT 	to 	encroach 	on 	CWA bulletin
board 	space.
C) 	Permitting 	supervisors 	to 	make 	statements 	which
imply State 	support 	for 	CAPT 	over 	CWA.
D) 	Distributing 	literature 	for 	CAPT 	through 	the
hospital 	mail 	system.
E) 	Filing 	a 	unit modification petition 	to 	remove
Senior 	Psychiatric 	Technicians 	from 	the 	bargaining 	unit.
60

3) 	Did the conduct 	of 	the State, 	when considered 	as 	a
whole, 	sufficiently 	interfere with 	the 	election 	that 	the 	result
should 	be 	set 	aside?
CONCLUSIONS 	OF 	LAW
ALLEGED 	UNILATERAL 	CHANGES
Although 	in 	their 	briefs 	the 	parties 	do 	not 	argue 	that 	the
State 	committed 	any violation 	of 	SEERA 	subsection 	3519(c)
during 	the pre-election period, 	the 	issue 	is 	set 	out 	in 	the
complaint 	and 	evidence 	on 	the 	contention was 	presented 	during
the hearing. 	This 	proposed decision, 	therefore, 	will consider
whether 	the 	State made unilateral 	changes 	in 	access 	policy,
telephone use 	policy, 	and 	permissible 	locations 	for 	the
distribution of 	literature 	in violation of 	subsection 	3519(c).
It 	is well 	settled 	that 	an employer 	that makes 	a
pre-impasse 	unilateral 	change 	affecting 	an 	established 	policy
within 	the 	scope 	of 	representation violates 	its 	duty to meet
and negotiate 	in good faith. 	NLRB v. 	Katz 	(1962) 	369 U.S. 	736
[50 LRRM 2177]. 	Such unilateral 	changes 	are 	inherently
destructive 	of 	employee 	rights 	and 	are 	a 	failure 	per 	se 	in the
duty to 	negotiate 	in good 	faith. 	See generally, 	Davis 	Unified
School District et al. 	(1980) 	PERB Decision No. 	116,
San 	Francisco 	Community College District 	(1979) 	PERB Decision
No. 	105, 	State of California 	(Department of Transportation)
(1983) 	PERB Decision No. 	361-S.
Established 	policy may be 	reflected 	in 	a 	collective
agreement, 	Grant 	Joint Union High School District 	(1982) 	PERB
61

Decision No.196, 	or where the 	agreement 	is 	vague or 	ambiguous,
it may 	be determined 	by 	an 	examination 	of 	bargaining 	history,
Colusa Unified 	School District 	(1983) 	PERB Decision Nos. 	296
and 296(a), 	or the past practice, 	Rio Hondo Community College
District 	(1982) 	PERB Decision No. 	279, 	Pajaro Valley Unified
School District 	(1978) 	PERB Decision No. 	51.
Where 	the 	purported 	violation 	involves 	the 	alleged
repudiation of 	a 	contract 	clause, 	the exclusive 	representative
must 	prove: 	(1) 	That 	the employer 	breeched or otherwise
altered the parties' 	written agreement; 	and 	(2) 	that 	the breech
had 	"a 	generalized 	effect 	or 	continuing 	impact 	upon 	the 	terms
and 	conditions 	of 	employment 	of 	bargaining 	unit 	members."
Grant Joint Union High School 	District, 	supra, 	PERB Decision
No. 19 6.
Access
Regarding 	access, 	the complaint 	alleges 	that 	the 	employer
unilaterally 	changed 	past 	practice 	by 	requiring 	CWA
representatives 	to 	provide 	a 	24-hour 	notice prior 	to 	visitation
of 	the hospital 	units. 	The contractual 	access 	provisions
(footnotes 	5 	and 	6, 	supra) 	set out 	no 	requirement 	that CWA give
-
24-hours 	notice 	prior 	to 	receiving 	access 	to 	hospital
facilities, 	or 	to distributing 	literature. 	The contract
requires 	only 	that 	chapter 	officers 	and 	stewards 	"notify 	the
program director 	or 	designee" 	and 	receive 	"approval 	prior 	to
entering 	the 	program." 	No 	reference 	is 	made 	to 	any minimum
amount 	of 	advanced 	notice 	required. 	Similarly, 	the contractual
62

access 	clause 	contains 	no ban 	against 	the nocturnal 	posting 	of
literature 	by CWA 	stewards.
There 	is 	no 	evidence 	that 	the 	past 	practice was 	any more
stringent 	than the contract. 	Barbara 	Long, 	CWA steward 	at
Camarillo, 	credibly 	testified 	that 	during 	the 	spring 	of 	1985
she was 	told 	that 	she 	could 	no 	longer 	visit 	unit 	breakrooms
without 	giving 	24-hours 	advance 	notice. 	She 	also was 	told 	she
could 	not 	post 	literature 	at 	night. 	Although 	she 	had 	been
active with CWA 	for 	some 	time, 	she 	had 	never 	previously been
requested 	to 	give 	such notice.
Regarding 	Napa, 	CWA 	steward 	Deborah Whitlock 	credibly
testified 	that 	a 	24-hour 	notice 	requirement was 	imposed 	during
the 	pre-election 	campaign period. 	She 	testified 	that 	the 	rule,
which was 	newly 	imposed during 	1985, 	applied 	to 	the 	posting 	of
literature 	on 	a 	CWA 	steward's 	own unit 	breakroom bulletin 	board
as well 	as 	to 	posting 	on 	the bulletin boards 	of 	other 	units.
The 	prohibition 	against 	nocturnal 	visits 	at 	Camarillo 	and
24-hour 	notice 	requirement 	at 	Camarillo 	and 	Napa 	were 	changes
from the 	access 	requirements 	set 	out 	in 	the 	agreement 	between
the parties. 	These changes 	had 	"a generalized effect" 	and 	a
"continuing 	impact" 	upon employment 	conditions 	in the unit.
Grant Union High School District, 	supra. 	PERB Decision
No. 	196. 	They were made unilaterally without 	any prior 	notice
to CWA. 	By making 	the 	changes, 	the 	State violated 	section
3519(c) 	and derivatively sections 3519(a) 	and 	(b).
63

San Francisco Community College District, 	supra, 	PERB Decision
No. 	105.1 6
1 6 CWA 	contends 	that 	while 	placing 	new 	restrictions 	on 	CWA
organizers, 	the 	State 	ignored violations 	of 	existing 	rules 	by-
two CAPT 	supporters. 	CWA 	identifies 	them as 	Dennis 	Foster 	at
Metropolitan 	State 	Hospital 	and 	Jay Salter 	at 	Atascadero 	State
Hospital. 	This 	is 	one of 	several 	Unalleged violations which
CWA 	raises 	for 	the 	first 	time 	in 	its 	brief.
With 	respect 	to Foster, 	CWA contends 	that whereas 	hospital
rules 	prohibit 	organizing during work time, 	Mr. 	Foster went
freely 	to 	other 	units 	and 	talked 	to 	employees 	about 	CAPT during
work time. 	The State, 	CWA argues, 	did not halt Mr. 	Foster's
activities 	until 	approximately 	three weeks 	after 	balloting
ended.
As 	noted 	by both the 	State 	and CAPT, 	Mr. 	Foster 	at 	various
times worked 	for both unions. 	Mr. 	Foster's 	ambivalence
certainly clouds 	the 	case 	for 	employer 	partiality. 	But 	more
importantly, 	contrary to 	the contentions 	of CWA, 	the State did
not 	idly watch as Mr. Foster violated 	the 	rules. 	Mr. 	Foster was
told 	to 	stop 	distributing 	union 	literature 	during 	work 	time 	by
his 	shift 	lead, 	Frank Abasta. 	Harold Weed, 	the unit 	supervisor
in charge of 	the unit where Mr. 	Foster works, 	directed 	that
Mr. 	Foster be 	advised that 	if 	he did not 	stop, 	further 	action
would be 	taken. 	Mr. 	Foster 	apparently did not 	stop 	and
ultimately, 	on August 6, 	1985, 	he was given a written
memorandum warning 	that 	further 	violations 	would 	"not 	be
tolerated." 	While 	the 	action 	against Mr. 	Foster may not 	have
been 	as 	strong 	as 	CWA would have 	liked, 	it 	certainly cannot 	be
said 	that 	the 	State 	ignored Mr. 	Foster's 	violations 	of 	the
rules.
At Atascadero, 	CWA argues, 	interim CAPT President
Jay Salter 	"was 	allowed 	virtual 	limitless 	access." 	CWA 	argues
that Mr. 	Salter was 	permitted 	access 	to 	any unit 	on hospital
grounds 	merely by 	telling 	management 	he 	planned 	to 	be 	there,
contrary to 	the 	restrictions 	governing 	access 	for 	CAPT.
Mr. 	Salter was 	a 	former 	CWA steward. 	He 	testified 	that 	before
he began to distribute 	literature 	for CAPT, 	he consulted
hospital 	administrative 	directives 	and 	the CWA contract. 	He
then 	attempted 	to 	adhere 	to 	the policies 	as 	he understood
them. 	He was 	not 	"allowed" 	greater 	access 	by the 	State.
Whatever 	access 	he enjoyed, 	he took on his 	own. 	No management
witnesses were 	questioned 	about Mr. 	Salter's 	practices 	and
there 	is 	no 	basis 	for concluding 	that 	management 	knew 	about 	any
deviations Mr. 	Salter may have made. 	In the 	absence of 	any
showing 	of 	knowledge on the part 	of 	State management, 	there 	is
no 	basis 	for 	concluding 	that Mr. 	Salter was 	"given" 	favored
treatment.
64

No 	violation will 	be 	found 	for 	the 	imposition 	of 	a 	24-hour
requirement 	at 	Fairview. 	CWA 	failed 	to 	present 	convincing
evidence 	about 	the past 	practice 	there. 	The only witness 	to
testify on 	this 	subject was 	Hal 	Britt, 	the hospital 	personnel
officer. 	At 	one point, 	he 	testified 	that union 	stewards 	could
gain 	access 	to 	units 	by 	simply making 	a 	request 	to 	the 	program
director. 	Then 	he 	amplified 	his 	answer 	to 	say that 	24-hours
advance 	notice was 	required, 	but 	frequently waived. 	Neither
Mr. 	Britt 	nor 	any other witness 	explained when 	the 	24-hour
notice 	requirement was 	instituted. 	It 	is 	unclear 	from the
record whether 	this was 	a 	new 	requirement 	or whether 	the
hospital 	had 	imposed 	it 	at 	some earlier 	date. 	The burden of
showing 	a 	change 	is 	on the Charging Party. 	Walnut Valley
Unified School District 	(1981) 	PERB Decision No. 	160. 	There 	is
no 	persuasive 	evidence 	to 	establish when 	the 	24-hour
requirement was 	instituted 	at 	Fairview. 	Although 	it 	is 	a
deviation 	from the 	contract, 	the 	requirement 	appears 	to 	have
been of 	some 	longstanding. 	It was not, 	therefore, 	a unilateral
change 	made 	during 	the 	relevant 	period.
Use 	of 	Telephones
The 	contract 	between 	the 	parties 	is 	silent 	regarding
telephone usage. 	Nevertheless, 	DMH 	labor 	relations 	Chief
James 	Moore 	testified 	that 	the 	department 	has 	permitted
employee 	organizations 	to 	use 	State 	phones 	to 	facilitate 	the
resolution 	of 	grievances 	and 	other 	representational 	issues.
Use 	for 	other 	union 	purposes 	has 	not 	been 	permitted.
65

During 	the 	pre-election 	period 	CWA 	representatives 	at
Patton 	State 	Hospital 	were 	told 	that 	they could 	no 	longer 	use
the 	State phone 	for union business. 	Patton, 	one of 	the
hospitals within 	the 	jurisdiction 	of 	the Department 	of 	Mental
Health, 	previously had 	permitted union 	officers 	to 	use 	the
State 	phone 	for 	grievance 	resolution 	and 	other 	representational
purposes. 	Prohibiting 	the use 	of 	the 	phone during 	the 	election
was 	a 	change 	in past practice. 	An employer 	is 	permitted 	to
unilaterally halt 	a 	prior 	practice where 	that 	practice 	amounted
to unlawful 	assistance 	to 	an employee organization. 	See
Gonzales 	Union High 	School 	District 	(1984) 	PERB Decision
No. 	410. 	But 	there 	is 	nothing 	in the employer's 	authorization
for 	an exclusive 	representative 	to 	use 	the 	State 	telephone 	for
grievance 	resolution that 	implies unlawful 	support. 	Indeed, 	it
would be 	to 	both 	the 	employer's 	and 	the union's 	disadvantage 	to
prohibit 	the 	union 	from making 	a 	telephone 	call 	which might
bring 	about 	speedy 	resolution of 	a 	grievance.
Because 	the 	prohibition 	against 	all 	CWA usage 	of 	the
telephone was 	imposed unilaterally 	and marked 	a 	change 	from the
past 	practice, 	the 	State's 	action amounted to 	a violation of
section 3519(c) 	and, 	derivatively, 	sections 3519(a) 	and 	(b).
There 	is 	no 	violation 	in 	the 	State's 	refusal 	to 	permit 	the
union to 	install 	private 	lines 	at 	Patton, 	Napa 	and Agnews 	State
Hospitals. 	The 	State has 	had 	a 	consistent 	policy over 	a 	number
of 	years 	of 	prohibiting 	the 	installation of 	private 	lines 	in
its 	hospitals. 	When 	requests 	for 	lines 	have been made 	they
66

were 	refused 	and when 	private 	lines 	were 	discovered 	they have
been 	removed.
Leafletting 	Locations
Two 	contract 	provisions 	are 	applicable 	in 	establishing 	the
limits 	upon 	the distribution 	of 	literature. 	The 	contractual
access 	clause 	provides 	that 	access 	may be 	"deferred 	for 	reasons
related to client care, 	privacy, 	safety, 	security, 	or other
necessary business 	reasons." 	The 	contractual 	provision 	on
distribution 	of 	literature 	provides 	that 	materials 	may be
distributed 	"during 	nonwork 	hours 	. . . 	in 	nonwork 	areas."
During 	the 	election period, 	disputes 	arose 	about 	the
distribution of 	literature 	at 	Camarillo, 	Napa 	and Patton State
Hospitals.
At 	Camarillo, 	representatives 	of 	both CWA 	and 	CAPT were
directed 	by hospital 	police 	to 	stop 	distributing 	literature 	in
locations which blocked 	traffic. 	There 	is 	no 	evidence 	to 	show
that 	employees 	were 	ever 	permitted 	to 	distribute 	literature 	at
those 	locations 	on 	any prior 	occasion. 	CWA makes 	no 	argument
in 	its 	brief 	about 	the 	halt 	to 	literature distribution 	at
certain 	locations 	at 	Camarillo 	and 	in 	the 	absence 	of 	evidence
about 	past 	practice 	it 	cannot 	be 	concluded 	that 	the 	State's
action 	amounted 	to 	a unilateral 	change.
At 	Napa, 	the 	literature distribution 	location was moved 	a
few 	feet 	at 	the 	Imola Avenue entrance. 	This 	change was 	to 	get
the 	leaflet 	distributors 	farther 	onto 	hospital 	grounds 	in 	order
to 	avoid 	a 	backup of 	traffic 	onto 	a 	nearby city street. 	The
67

CWA 	leaflet 	distributors 	acceded 	to 	the 	request 	voluntarily.
CWA presented 	a 	great 	deal 	of 	evidence 	about 	instructions
that 	CWA organizers 	not 	distribute 	literature 	on 	the 	facility
grounds 	at 	the 	intersection of Magnolia 	and Spruce Drives. 	In
its 	brief, 	CWA contends 	that 	the 	State 	actually moved 	the
organizers 	to 	a 	site near 	the main entrance to 	the hospital
grounds. 	In fact, 	there was no move. 	Although hospital police
officers 	spoke 	to 	CWA 	representatives 	and 	asked 	them to move 	to
the 	other 	location, 	they did 	not 	do 	so. 	As 	both 	the 	State 	and
CAPT point 	out 	in their 	briefs, 	CWA continued 	to 	leaflet 	at 	the
Magnolia-Spruce 	location. 	Buck 	Bagot 	successfully protested
the proposed change 	in distribution sites. 	Mr. 	Friday, 	the
hospital 	administrator, 	yielded 	to Mr. 	Bagot's 	protest 	and CWA
activists 	remained 	at 	the Magnolia-Spruce 	intersection
throughout 	the 	campaign.17
17 During 	the course of 	the debate between Mr. 	Friday and
Mr. 	Bagot 	about 	literature distribution 	locations, 	Mr. 	Friday
sent 	two 	letters 	to CWA officials 	in Los Angeles. 	Hospital
police 	filed 	a written 	report 	about 	an 	incident 	involving
leaflet 	distribution 	and Mr. 	Friday 	and 	other 	administrators
wrote 	an 	account 	for 	their 	records 	of 	a 	conversation between
Friday and Mr. 	Bagot. 	In 	its 	brief, 	CWA characterized these
communications 	as 	"a 	threatening 	paper war with CWA
representatives 	. 	. 	. 	all of which chastise CWA for not
complying 	with 	the 	illegal 	requirements 	established 	by
Friday." 	CWA describes 	the 	letters 	and 	reports 	as 	representing
"particularly harsh 	treatment" 	of 	CWA.
CWA makes 	too much of 	the documents. 	The 	letters 	are
nothing 	more 	than written 	statements 	of 	the 	same 	position
Mr. 	Friday espoused 	in conversations with CWA 	representatives.
The 	police 	report 	is 	hardly 	"threatening" 	and does 	not
"chastise" 	anyone. 	The 	report 	for 	the 	file 	is 	a 	rather
straightforward 	account 	of 	a 	series 	of 	conversations. 	No
unlawful 	conduct 	is 	revealed 	in 	any of 	the documents.
68

At 	Patton 	State 	Hospital, 	the 	State 	halted 	the 	distribution
of 	leaflets 	at 	the 	traditional 	location 	near 	two 	speed 	bumps 	on
Patton Avenue. 	Although 	hospital 	administrators 	previously had
permitted 	the 	distribution 	of 	literature 	near 	the 	speed 	bumps,
the 	location was 	seen 	as 	sufficiently dangerous 	that 	persons
distributing 	literature 	at 	the 	site were 	requested 	to 	sign 	a
waiver 	stating 	that 	they would not 	sue 	the 	hospital 	if 	they
were hurt. 	At 	the 	insistence 	of 	the correctional 	captain 	in
charge 	of 	hospital 	security, 	hospital 	administrators 	prohibited
leafletting 	at 	the 	speed 	bumps 	during 	the 	1985 	campaign. 	CWA
representatives were notified 	of 	the 	change prior 	to 	any
efforts 	by them to 	distribute materials. 	They were 	offered
three 	alternative 	sites 	plus 	the 	hospital 	parking 	lots.
In 	its 	brief, 	CWA 	rejects 	the 	safety concerns 	expressed 	by
State witnesses 	at 	the hearing. 	CWA 	argues 	that 	no 	State
witness 	ever 	"convincingly 	explained" 	why 	safety 	concerns
became 	paramount 	in 	1985 	and why 	they could 	not 	have 	been
handled 	in 	some manner 	other 	than 	"outright 	prohibition 	of
distribution." 	In 	actuality, 	correctional 	Captain James Wright
explained why he went 	along with 	distribution 	at 	the 	speed
bumps 	in 	1983. 	Using photographs 	and 	a hospital map, 	he 	also
convincingly 	described 	the 	safety dangers 	he 	believed 	inherent
in 	leaflet distribution 	at 	the speed bumps. 	It 	is 	quite clear,
moreover, 	that 	the 	prohibition of 	distribution 	at 	the 	speed
bumps was 	not 	an 	"outright" 	ban. 	The other 	locations 	offered
69
I

by 	the 	hospital 	administration permitted 	CWA 	to 	reach 	a
comparable 	number 	of 	employees.
The 	contract 	between 	the 	parties 	permits 	the 	deferral 	of
access 	for 	"safety" 	and 	"other 	necessary business 	reasons."
Evidence 	presented 	at 	the 	hearing 	established 	that 	the 	State
had 	legitimate 	concerns 	about 	employee 	safety 	in 	redirecting
the 	leaflet 	distributors 	away 	from the 	speed 	bumps 	to 	other
locations 	on hospital grounds. 	Because the contract, 	as 	the
embodiment 	of 	past 	practice, 	permits deferral 	of 	access 	for
safety 	reasons, 	it 	cannot 	be 	said 	that 	the 	State's 	action
amounted 	to 	a 	unilateral 	change.
For 	these 	reasons, 	it 	is 	concluded 	that 	the State did not
act 	improperly 	in 	redirecting 	leaflet 	distributors 	to 	other
locations 	at Camarillo, 	Napa 	and Patton State Hospitals.18
l^In 	another 	series 	of 	Unalleged violations, 	CWA 	argues
in 	its 	brief 	that 	during 	the 	campaign 	the 	State 	changed CWA's
representational 	rights 	at 	Patton 	State Hospital 	and 	its
release 	time 	policy 	at 	Patton 	and Lanterman.
Regarding 	representational 	rights 	at 	Patton, 	CWA cites 	the
testimony of 	one of 	its 	stewards, 	Homer 	Silver, 	who 	said that
in 	1985 	he, 	for 	the 	first 	time, 	was 	told he could discuss
grievance matters with employees 	only at 	break times. 	Prior 	to
the change, 	Mr. 	Silver 	said, 	he 	"had been allowed to use time
necessary and, 	as possible, 	. 	. 	. 	off of the unit." 	Mr. 	Silver
complained 	to 	Tricia Torres, 	the 	labor 	relations 	analyst 	at
Patton, 	who 	told him that 	"the needs 	of 	the unit" 	were 	"the
overriding 	factor." 	The 	restriction was 	lifted, 	he 	said,
several 	months 	later. 	The 	State 	responds 	that 	under 	the
contractual 	access clause, 	footnote No. 	5, 	supra, 	access may be
deferred 	"for 	reasons 	related 	to 	client 	care." 	The 	State's
argument 	seems 	perfectly 	reasonable. 	Mr. 	Silver was 	denied 	the
right 	to 	leave his 	duties 	for CWA business, 	except 	for 	break
and 	lunch times, 	because of 	"the needs 	of 	the unit." 	There 	is
nothing 	untoward 	in 	such 	a 	restriction. 	It 	seems 	plainly
contemplated within 	the 	contractual 	language.
With 	respect 	to 	release 	time, 	CWA's 	complaint 	at Patton 	is
70

that 	a 	steward, 	for the first time, 	was 	asked 	in 1985 	to
complete 	a 	form when he wished 	to 	be 	released 	on CWA business.
Prior 	to 	that, 	no 	form was 	required. 	As 	the 	State 	replies,
however, 	there 	is 	no evidence 	the Patton 	steward was 	denied 	any
released 	time 	or 	prevented 	from 	completing 	any CWA duties 	by
the 	recording-keeping 	device. 	In 	the 	absence 	of 	any evidence
that 	the 	change 	affected 	hours 	or 	some 	other 	matter within 	the
scope of 	representation, 	it did not violate the Act.
CWA's 	complaint 	regarding 	release 	time 	at 	Lanterman 	is 	that
the 	State 	changed 	the 	identity of 	the 	person 	authorized 	by 	the
State 	to 	grant 	release 	time. 	CWA contends 	that 	prior 	to 	the
election, 	union 	stewards 	could 	secure 	released 	time 	from their
shift 	leads 	but 	that during 	the 	election 	they were 	told 	to 	go
to unit 	supervisors. 	CWA contends 	that 	the effect 	of 	this
change was 	to 	require 	its 	steward, 	George King, 	to make 	release
time 	requests 	to 	the 	acting 	unit 	supervisor who was 	a 	CAPT
supporter. 	Lanterman Labor 	Relations 	Coordinator 	Nancy 	Irving
testified, 	however, 	that 	shift 	leads 	are bargaining unit
members 	and 	have 	never 	had 	the 	authority to 	grant 	release
time. 	Only unit 	supervisors, 	who 	are excluded 	from the unit,
can grant 	release 	time. 	Acting unit 	supervisors, 	who 	also 	are
members 	of 	the unit, 	are 	likewise 	barred 	from granting 	release
time. 	During 	the campaign, 	she testified, 	she made no change
but 	simply reminded Mr. 	King 	and others 	of 	the policy. 	The
question 	again 	is 	whether 	there was 	any 	change 	affecting 	hours
or 	any other matter within 	the 	scope 	of 	representation.
Surely, 	it 	is within the employer's discretion to 	identify
which 	person within management 	shall 	have 	the 	authority 	to
grant 	release 	time. 	CWA has 	made 	no 	claim that 	release 	time
was 	unreasonably denied 	to 	its 	stewards 	and 	there 	is 	no 	basis
for 	reaching 	such a conclusion on the 	record, 	here. 	In the
absence of 	evidence that 	the change, 	if 	indeed there was 	one,
affected 	hours 	or 	some 	other matter within 	scope,there 	is 	no
violation of 	the Act.
ALLEGED 	INTERFERENCE/UNLAWFUL 	SUPPORT
There 	is 	a 	great deal 	of 	overlap 	in both 	the evidence 	and
rules 	of 	law which 	establish 	interference 	and 	unlawful 	employer
support. 	In nearly any 	situation where 	an employer 	has
unlawfully 	supported 	one 	union 	against 	another 	that 	conduct
also will 	constitute 	interference 	in 	the protected 	rights 	of
employees. 	The 	applicable 	rules 	of 	law 	are well 	established
71

and, 	as CWA observes, "there 	is 	a 	remarkable agreement, 	or 	at
least 	no disagreement 	expressed, 	among 	the parties 	as 	to 	the
legal 	standards 	that 	apply."
State 	employees 	have 	the 	protected 	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.19
It 	is 	an unfair practice under 	section 3519(a) 	for 	the
State 	"to 	interfere with, 	restrain, 	or coerce
employees 	because 	of 	their 	exercise of" 	protected 	rights.20
In 	an unfair 	practice 	case 	involving 	an 	allegation of
interference, 	a violation will 	be 	found where 	the employer's
acts 	interfere or 	tend 	to 	interfere with the exercise 	of
protected 	rights 	and 	the 	employer 	is 	unable 	to 	justify 	its
actions 	by proving 	operational 	necessity. 	Carlsbad 	Unified
School 	District 	(1979) 	PERB Decision No. 	89.21 See 	also,
19 SEERA 	section 	3515.
20 Section 3519 	is 	found at 	footnote No. 	1, 	supra.
2 1 The 	Carlsbad 	test 	for 	interference provides 	as 	follows:
(2) 	Where 	the 	Charging 	Party establishes
that 	the 	employer's 	conduct 	tends 	to 	or 	does
result 	in 	some 	harm to 	employee 	rights
granted under 	the EERA, 	a 	prima 	facie case
shall 	be deemed 	to exist;
(3) 	Where the harm to 	the employees' 	rights
is 	slight, 	and 	the employer offers
justification 	based 	on 	operational
72

Novato Unified 	School District 	(1982) 	PERB Decision No. 	210,
Sacramento 	City Unified 	School 	District 	(1982) 	PERB 	Decision
No. 	214 	and 	Sacramento 	City Unified 	School 	District 	(1985) 	PERB
Decision No. 	492. 	In an interference case, 	it 	is not necessary
for 	the 	Charging 	Party 	to 	show 	that 	the 	Respondent 	acted with
an unlawful motivation. 	Regents 	of 	the University of
California 	(1983) 	PERB Decision No. 	305-H.
necessity, 	the competing 	interest 	of 	the
employer 	and 	the 	rights 	of 	the 	employees
will 	be 	balanced 	and 	the 	charge 	resolved
accordingly;
(4) 	Where 	the harm is 	inherently
destructive of employee 	rights, 	the
employer's 	conduct 	will 	be 	excused 	only on
proof 	that 	it was 	occasioned 	by
circumstances 	beyond 	the 	employer's 	control
and 	that 	no 	alternative 	course 	of 	action was
available;
(5) 	Irrespective of 	the foregoing, 	a charge
will 	be 	sustained where 	it 	is 	shown that 	the
employer would 	not 	have 	engaged 	in 	the
complained 	of 	conduct 	but 	for 	an unlawful
motivation, 	purpose or intent.
Like 	individual 	employees, 	organizations 	also 	have
protected 	rights 	under 	SEERA. 	Although 	there 	is 	no 	specific
statutory 	listing, 	the 	PERB 	has 	found 	that 	employee
organizations 	under 	SEERA 	are 	entitled 	to 	access 	at 	reasonable
times 	to work 	areas, 	to 	institutional 	bulletin boards 	and 	to
mailboxes 	for 	communication purposes. 	In 	addition,
organizations 	have 	the 	right 	to 	use 	institutional 	facilities
for 	meetings. 	State of 	California 	(Department 	of 	Corrections)
73

(1980) 	PERB Decision No. 	127-S. 	The employer 	"may reasonably
regulate 	access 	where 	necessary to 	assure 	the 	safety of 	its
employees, 	wards, 	and facilities 	and the efficient operation of
its 	official 	business." 	Ibid.
It 	is 	an unfair 	practice under 	section 3519(b) 	for 	the
State 	employer 	to 	"deny to 	employee 	organizations 	rights"
protected 	under 	SEERA. 	An 	alleged 	interference with
organizational 	rights 	is 	analyzed 	in 	the 	same manner 	as 	an
alleged 	interference with 	individual 	rights.
Under 	section 3519(d) 	it 	is 	an unfair practice 	for 	the
State employer 	to 	"contribute 	financial 	or 	other 	support" 	to 	an
employee 	organization 	or 	to 	"in 	any way encourage 	employees 	to
join 	any organization 	in preference 	to 	another." 	The 	PERB 	has
interpreted 	this 	language 	as 	imposing 	on 	employers 	"an
unqualified 	requirement 	of 	strict 	neutrality." 	Santa Monica
Community College District 	(1979) 	PERB Decision No. 	103 	and
Clovis Unified School District 	(1984) 	PERB Decision No. 	389.
There 	is 	no 	requirement 	that 	the 	employee organization 	show
that 	the 	employer 	intended 	its 	actions 	to 	impact 	on 	employee
free 	choice. 	"The 	simple 	threshold 	test 	. . . 	is whether 	the
employer's 	conduct 	tends 	to 	influence 	that 	choice 	or 	provide
stimulus 	in 	one direction or 	the 	other." 	Santa Monica
Community College District, 	supra. 	State of California
(Departments 	of 	Personnel Administration. 	Mental 	Health 	and
Developmental 	Services) 	(1985) 	PERB Decision No. 	542-S. 	See
74

also 	Sacramento 	City Unified 	School 	District 	(1982) 	PERB
Decision No. 	214.
In 	a 	case 	involving 	an 	allegation of 	unlawful 	support,
"each 	individual 	factual 	assertion need 	not 	stand 	alone 	as
conduct violative of the Act, 	but, 	rather, 	the totality of
circumstances 	must 	be considered." 	State of 	California, 	supra,
PERB Decision No. 	242-S. 	Where, 	for example, 	various employer
communications 	are under 	attack, 	they are 	to 	be viewed
"together, 	with each capable of 	lending 	support 	to 	the
underlying 	claim." 	Ibid.
Although 	the 	parties 	agree 	on 	these 	general 	principles 	of
law, 	they are 	in vigorous 	dispute 	about 	the 	application of
these 	rules 	to 	the 	facts 	at 	issue. 	As 	CWA correctly observes,
the 	key 	issue 	is 	"what 	facts 	do 	exist 	and whether 	those 	facts
constitute unfair 	practices 	or 	grounds 	to 	set 	aside 	the
election." 	For 	the most 	part, 	the 	factual 	findings 	dictate 	the
result.
Employer-Written 	Memoranda
Although 	the 	complaint 	lists 	three 	employer-written
memoranda 	in 	its 	accusation 	of 	interference 	and 	unlawful
support, 	there was 	a total 	failure of 	proof 	regarding 	one of
these. 	There 	is 	no 	evidence 	in the 	record that 	a March 	5,
1985, 	memo 	by Gary Scott was 	ever 	posted 	at 	Sonoma 	State
Hospital 	or 	anywhere else. 	Indeed, 	CWA makes 	no 	argument
regarding 	the memo 	in 	its 	briefs. 	Because of 	the 	failure of
proof, 	the 	allegation 	regarding 	this memo 	is 	dismissed.
75

The 	two 	other 	contested 	communications 	are 	a 	February 	26,
1985, 	letter by Ivonne Ramos Richardson and a June 4, 	1985,
memo 	by Denise Bates. 	The evidence 	establishes 	that 	the
Richardson memo was 	posted 	on 	at 	least 	two 	units 	at 	Camarillo
State Hospital 	and 	that 	the 	Bates 	memo was 	posted 	on 	a 	number
of 	units 	at 	the Metropolitan State Hospital.
CWA characterizes 	the Richardson 	letter 	as 	the
"recognition" 	of 	CAPT by the Department 	of 	Personnel
Administration. 	The 	State 	rejects 	this 	argument 	characterizing
as 	"tortured 	logic 	and 	a 	selective 	reading 	of 	the 	record," 	the
CWA 	contention 	that 	the 	Richardson 	letter 	constituted 	a
premature 	recognition of 	CAPT. 	The 	State points 	to 	the 	text 	of
the 	letter which 	in context, 	the State 	argues, 	gives CAPT
standing 	only as 	an employee organization. 	Moreover, 	the 	State
continues, 	there 	is 	no evidence that 	the 	letter was widely
distributed 	or 	even 	seen by many State 	employees. 	Thus, 	its
impact was minimal 	at most.
While 	the 	Richardson 	letter 	assuredly was 	deficient 	in
clarity 	and 	precision, 	CWA makes 	too much of 	it. 	By 	its 	very
terms, 	the 	letter did not purport 	to 	"recognize" 	CAPT as 	the
exclusive 	representative. 	The 	letter 	granted 	CAPT
"recognition" 	as 	an employee 	organization 	and 	specifically 	tied
the 	"recognition" 	to 	SEERA 	section 	3513(a).22 While 	this
22 Section 3513(a) 	is 	the definition of 	"employee
organization." 	See footnote No. 	3, 	supra.
76

legalistic wording might 	be confusing, 	there 	is 	nothing 	in 	the
context 	of 	the 	letter which 	constitutes 	unlawful 	support 	by 	the
State 	for CAPT.
In 	addition, 	there 	is 	no 	evidence the 	letter was 	posted
anywhere 	other 	than on 	two 	units 	at 	Camarillo 	State Hospital
and 	even on 	those 	two units, 	there 	is 	no 	persuasive evidence
that 	the 	letter was 	posted 	by 	a 	representative 	of management.
More 	likely, 	it was 	posted 	by someone 	from CAPT. 	Given 	the
very narrow circulation of 	the 	letter, 	it 	is 	hard 	to 	believe
that 	it 	amounted 	to 	an 	interference with 	the 	protected 	rights
of 	either 	individual 	employees 	or 	of 	CWA.
A more 	significant 	problem 	is 	presented 	by 	the 	Bates 	memo
at Metropolitan State Hospital. 	The 	Bates memo 	listed 	the
names 	of 	seven persons 	which 	it 	described 	as 	newly 	appointed
"job 	stewards" 	for CAPT. 	It 	also contained the name of
Lyle Vandagriff 	who 	it 	said 	should 	be 	removed 	from 	the 	CWA 	job
steward 	list.
CWA 	reviews 	the 	testimony of 	a 	number 	of 	its witnesses who
described 	the 	negative 	impact 	of 	the 	Bates 	memo. 	CWA 	asserts
that 	the 	evidence 	shows 	that 	the memo 	"had 	precisely the
negative 	impact 	one would 	reasonably 	expect when management
lists 	and publishes 	job 	stewards" 	from a union trying 	to 	unseat
the 	incumbent 	union. 	Both 	the 	State 	and CAPT minimize 	the
impact 	of 	the memo. 	The 	State notes 	that 	Bates 	candidly
admitted 	that 	the 	term 	"steward" 	was 	incorrect 	and 	argues 	that
it was 	used 	innocently. 	The 	State 	finds 	no 	persuasive 	evidence
77

of 	impact 	from the 	testimony of 	CWA's witnesses. 	CAPT notes
that 	a 	memo 	correcting 	the 	inappropriate 	terminology was 	sent
promptly 	to 	all 	management 	representatives. 	CAPT contends 	that
CWA makes 	too much of 	the word 	"steward" 	and 	that 	in 	the
ordinary 	speech 	of 	psychiatric 	technicians 	the 	word 	steward
could 	not 	have 	caused 	the 	problems 	attributed 	to 	it 	by CWA
witnesses.
The 	problem here 	is 	not 	so much 	the use 	of 	the word
"steward" 	as 	in the 	posting 	of 	the memo 	by management
representatives. 	CWA witnesses 	credibly 	testified 	that 	the
posting 	of 	the memo 	created 	confusion 	and, 	at 	least 	to 	some
employees, 	suggested management 	favoritism toward CAPT. 	While
the 	purported 	effects 	of 	the 	memo 	listed 	by CWA witnesses 	seem
somewhat overdrawn, 	I believe that 	at minimum the posting of
the memo 	resulted 	in 	"some harm to 	employee 	rights." 	It
requires 	no 	imagination 	to 	believe 	that 	the 	posting 	by
management 	of 	a memo 	listing 	the 	representatives 	of 	a 	rival
union would 	tend 	to 	discourage 	employees 	working 	for 	the 	other
union. 	The mere posting 	of 	the names 	of 	one union's
representatives 	suggests 	management 	support 	for 	that 	union.
The 	problem 	is 	accentuated when the 	same 	list 	shows 	the 	removal
of 	a 	steward 	representing 	the other union. 	While Ms. 	Bates
persuasively 	testified 	about 	the 	need 	to 	inform unit 	managers
of 	the 	identify of CAPT 	representatives, 	no 	operational
necessity was 	shown 	for why 	the 	list 	needed 	to 	be 	posted.
78

Similarly, 	the posting 	of 	the 	Bates memo 	fell 	short 	of 	the
"unqualified 	requirement 	of 	strict 	neutrality" 	imposed 	upon 	the
State employer 	by section 3519(d). 	See e.g. 	Santa Monica
Community College District, 	supra. 	PERB Decision No. 	103.
Posting 	of 	the 	Bates memo 	gave wide 	circulation 	to 	the names 	of
CAPT 	representatives 	and may well 	have 	assisted 	the
organization by 	identifying 	to 	employees 	persons who 	could 	tell
them about CAPT. 	Although Ms. 	Bates 	did not 	intend 	for 	her
memo 	to 	be 	posted 	and 	took steps 	to 	replace 	it when 	she 	learned
of 	its 	erroneous 	use of 	the word 	steward, 	the 	record 	is 	clear
that 	supervisory persons were 	responsible. 	The 	actions 	of 	a
supervisor will 	be 	imputed 	to 	the 	employer. 	Office 	of 	Kern
County Superintendent of 	Schools 	(1985) 	PERB Decision No. 	533.
For 	these 	reasons, 	it 	is 	concluded 	that 	the State violated
SEERA sections 	3519(a) 	and 	(d) 	by the posting 	of 	the 	Bates 	memo
at Metropolitan State Hospital.23
23 C	23cWA	wA 	contends 	in 	another 	Unalleged violation 	that 	the
State was 	responsible 	also 	for 	the posting 	of 	lists 	of 	CAPT
representatives 	at 	Lanterman 	and Napa 	State Hospitals. 	The
evidence of 	this 	assertion 	is 	far 	from persuasive. 	At 	both
hospitals, 	management 	sent 	to program directors 	and 	other
administrators 	memoranda 	identifying 	CAPT 	representatives. 	The
purpose 	of 	these memoranda, 	which 	is 	apparent 	from their
wording, 	was 	to 	identify for 	program directors 	the 	CAPT
representatives 	who would 	be 	entitled 	to 	post 	literature 	on
unit 	breakroom bulletin 	boards.
At 	Lanterman, 	CWA witness 	Debra 	Saviano 	testified 	that 	she
saw a 	listing of 	"CAPT 	stewards" 	posted 	in the breakroom. 	She
said 	the memo 	bore 	no 	identification 	as 	being 	from the 	hospital
administration. 	Plainly, 	what Ms. 	Saviano 	saw was not 	the
memorandum circulated 	by hospital 	management. 	That 	document
carried 	a 	hospital 	letterhead 	and 	identified 	the 	CAPT workers
as 	"representatives." 	There 	is 	no evidence that what
79

Ms. 	Saviano 	saw was 	posted 	by management 	and 	one 	can 	reasonably
infer 	from her 	testimony that 	it was 	a 	document 	posted 	by
someone 	representing 	CAPT.
At 	Napa, 	CWA witness 	Dennis 	Linehan 	testified 	that 	he 	saw
the 	management 	memo 	listing 	CAPT 	representatives 	posted 	in 	the
nursing 	station of 	his 	unit. 	The evidence 	reveals 	nothing
untoward 	about 	the memo. 	It was 	placed on 	a 	clipboard with
other management memos. 	The wording 	of 	the memo 	is 	indicative
of 	its 	very narrow purpose. 	Unlike 	the memorandum at
Metropolitan State Hospital, 	the 	record 	is 	devoid of 	any
evidence 	of 	impact 	the 	Napa 	memo 	may have 	had 	upon 	protected
rights 	of 	employees 	or 	CWA. 	Given the 	location 	and wording 	of
the memo, 	together with 	its 	limited circulation, 	the 	absence of
evidence of 	impact 	is what 	one would expect.
Use 	of 	Hospital 	Facilities
CWA contends 	that 	the 	State 	interfered with 	its 	protected
rights 	by denying 	it 	the use 	of 	conference 	rooms 	at Atascadero
and 	Stockton 	State 	Hospitals 	and 	building 	lobbies 	at Atascadero
and Napa 	State Hospitals. 	CWA also 	contends 	that 	it was 	denied
the 	use 	of 	the 	public 	address 	system at 	Patton 	State 	Hospital.
In each instance, 	CWA argues, 	the State permitted CAPT to use
the 	facilities which were denied 	to 	CWA. 	Such conduct, 	CWA
argues, 	constitutes 	not 	only an unlawful 	interference with 	the
protected 	rights 	of 	employees, 	it 	also 	interferes with CWA's
rights 	of 	access 	and 	amounts 	to 	a 	display of 	employer
favoritism 	toward 	CAPT.
Both 	the 	State 	and 	CAPT 	responded 	that 	the 	evidence 	simply
will 	not 	support 	CWA's 	allegations. 	Regarding 	the 	alleged
denial 	of 	CWA's 	request 	to 	use 	the 	executive director's
conference 	room at Atascadero, 	the 	State cites 	the 	testimony of
Atascadero 	labor 	relations 	analyst, 	Shirley McCall.
80

Ms. 	McCall, 	who 	is 	responsible 	for 	arranging 	room use 	for
unions, 	testified 	that 	CWA made no 	request 	for 	the 	executive
director's 	conference 	room during 	the 	period 	from April 	through
July 	1985. 	CAPT 	argues 	similarly that 	CWA was 	denied 	the use
of 	the 	room because 	it 	did not make 	a 	timely 	request.
I 	conclude 	that 	the 	State 	and CAPT 	are 	correct. 	CWA's
allegations 	regarding 	the 	executive 	director's 	conference 	room
at Atascadero must be dismissed 	for want 	of 	proof. 	The
evidence 	suggests 	that, 	as 	argued by CAPT, 	the 	reason CWA was
unable 	to 	schedule 	the 	conference 	room 	at Atascadero was 	that
it made 	no 	timely 	request 	for 	it. 	The glib testimony of 	CWA
witness 	Sandra 	Dunlea 	regarding 	her 	efforts 	to 	secure 	a 	room at
Atascadero was 	singularly unpersuasive. 	Although 	the 	State 	has
an obligation 	to 	make meeting 	rooms 	available upon 	request
by unions, 	it has 	the 	right 	to 	rationally 	regulate 	such usage.
This 	includes 	the 	right 	to 	request 	a union to 	give 	advance
notice 	of 	its 	desire to use 	a 	room and 	to deny the 	room if 	it
already 	is 	in use 	for 	State 	purposes 	or 	by 	some 	other
organization.
CWA's 	contention that 	it was 	denied 	the use 	of 	the
conference 	room at 	Stockton 	also 	is 	dismissed 	for 	failure 	of
proof. 	CWA 	steward Earl 	Lytle 	acknowledged 	that 	on 	each
occasion he 	requested 	the 	room the 	secretary who 	handles 	the
room 	assignments 	examined 	a 	book before 	advising 	him that 	the
room was 	unavailable. 	He made 	no 	request 	to 	examine 	the 	book
personally. 	On each occasion, 	Mr. 	Lytle was 	granted 	another
81
I

room 	in 	the 	hospital 	for 	use 	by CWA. 	The 	evidence 	establishes
that 	CAPT used 	the 	room only 	once 	and 	that 	the 	room was
assigned 	to CAPT because 	it 	is 	a 	small 	room and CAPT expected 	a
small 	gathering.
Regarding 	the Atascadero 	lobby, 	the 	State 	argues 	that 	by
longstanding 	policy only one 	organization 	at 	a 	time 	is
permitted 	to 	set 	up 	a 	table 	and distribute 	literature.
Representatives 	of 	a 	second 	organization may 	hand 	out
literature 	in the 	lobby, 	the 	State contends, 	but CWA never
attempted 	to 	do 	this. 	CAPT notes 	that 	there 	is 	no 	restriction
on 	leafletting 	outside 	of 	the 	lobby 	and 	there was 	no 	evidence
that 	CWA was 	denied 	the 	opportunity to 	leaflet 	there 	or
elsewhere.
CWA 	has 	demonstrated 	no 	interference with 	its 	ability 	to
distribute 	literature 	at 	the Atascadero 	administration
building. 	As CAPT argues, 	there was 	at 	no 	time 	any restriction
upon 	the 	distribution of 	literature 	just 	outside 	the 	doors 	to
the 	lobby. 	The 	evidence 	establishes 	that 	approximately 	the
same 	number 	of 	employees 	pass 	the 	location 	outside 	the 	lobby 	as
pass 	the 	location 	inside. 	CWA was 	aware 	of 	the 	opportunity to
distribute 	literature 	at 	this 	location, 	but 	apparently chose
not 	to. 	Once more, 	CWA's 	primary problem was 	a 	failure to make
a 	timely request 	to use 	the 	facilities 	it desired. 	CWA's
unpersuasive witness on this 	issue, 	Sandra Dunlea, 	admitted
that 	she did 	not 	request 	alternative 	dates 	for 	the 	use 	of 	the
lobby when 	she 	ascertained 	that 	it 	already was 	in use 	by
82

another 	organization. 	There 	can be no 	finding 	that 	the 	State
showed 	favoritism 	toward 	CAPT when 	CAPT made 	a 	timely 	request
to use 	the 	lobby and CWA, 	after making 	a 	later 	request, 	did not
bother 	to 	seek 	an 	alternative date.
CWA makes 	an even 	less 	compelling 	case 	in 	its 	contention
that 	CAPT 	received 	favored 	treatment 	in 	the usage 	of 	the 	lobby
of 	the Napa 	State Hospital 	administration building. 	It 	is
undisputed 	that 	CAPT 	representative 	Earl 	Dale 	distributed
literature 	to 	employees 	standing 	in 	the 	pay 	line 	prior 	to
7:40 	a.m. 	on one payday morning 	in the 	spring 	of 	1985. 	CWA
finds 	employer 	support 	for 	CAPT 	in 	that 	CWA previously 	had 	been
told 	it 	could not distribute 	literature 	in 	the 	lobby of 	the
administration building. 	Mr. 	Dale, 	however, 	distributed the
literature without 	the permission of 	hospital 	administrators.
He 	credibly 	testified 	that 	he was 	unaware 	of 	the 	prohibition
and 	there 	is 	no 	credible 	evidence 	that 	any hospital
administrator 	knew of Mr. 	Dale's 	action.
With 	respect 	to 	the 	alleged use by CAPT of 	the 	public
address 	system at 	Patton State Hospital, 	the State 	argues 	that
CWA 	provided 	no 	proof 	that 	hospital 	management 	authorized 	the
announcement 	or 	had 	knowledge 	that 	the discussions 	at 	the
meeting would 	relate 	to 	the decertification campaign. 	CAPT
argues 	that 	CAPT 	as 	an organization was 	not mentioned 	in 	the
announcement 	and 	there was 	no 	evidence 	that CAPT was 	ever
mentioned 	at 	the meeting.
83

I 	find 	the 	evidence unpersuasive 	that 	the use 	of 	the 	public
address 	system at 	Patton 	amounted 	to 	unlawful 	State 	support 	for
CAPT. 	Indeed, 	it 	seems 	highly 	likely that 	the 	announcement was
made 	before CAPT was 	even 	formed. 	CAPT did not 	come 	into
existence 	as 	an organization until 	January 26, 	1985. 	The
disputed 	public 	address 	system 	announcement 	was 	made 	sometime
in 	late 	1984 	or 	early 	1985. 	One would 	expect 	that 	if 	the
meeting 	concerned 	CAPT 	the 	name 	CAPT would 	have 	been mentioned
in either 	the 	announcement 	or during 	the meeting 	itself. 	There
is 	no 	evidence 	that 	the name CAPT was mentioned 	at 	any time.
The 	announcement 	over 	the 	public 	address 	system could 	not
constitute 	favoritism toward 	CAPT 	if 	indeed 	CAPT 	did 	not 	yet
exist. 	In addition, 	there is no evidence that Patton
administrators 	authorized 	the 	reading 	of 	the 	announcement. 	The
public 	address 	system is 	controlled by telephone 	operators. 	It
is 	as 	easy 	to 	infer 	from the 	record 	that 	one 	of 	the 	operators
made 	the 	announcement without 	authorization 	as 	it 	is 	to
conclude 	the contrary. 	On this question, 	therefore, 	CWA has
failed 	to 	establish 	its 	contentions 	by 	a 	preponderance 	of 	the
evidence.
For 	these 	reasons, 	the contentions 	that the State
interfered 	with 	protected 	rights 	and/or 	showed 	favoritism
toward CAPT 	regarding 	the 	usage of 	conference 	rooms 	at
Atascadero 	and Stockton, 	lobbies 	at Atascadero 	and Napa, 	and
the public 	address 	system at 	Patton, 	are 	all 	dismissed.
84

Literature 	in 	the 	Nursing 	Station
CWA 	argues 	in 	its 	brief 	that 	CAPT 	literature 	could 	be 	found
in various 	hospital 	nursing 	stations. 	CWA contends 	that 	the
literature was 	present 	in violation of 	hospital 	rules 	and 	that
supervisory persons 	failed 	to 	enforce 	the 	rules 	by prompt
removal 	of 	the CAPT material. 	CWA finds 	the presence 	of 	CAPT
literature 	in the nursing 	station to 	be part 	of 	a 	climate of
support 	for 	CAPT which 	CWA 	found 	prevailing 	throughout 	the
hospitals 	during 	the 	pre-election 	period.
There was 	credible 	evidence 	that 	CAPT 	literature 	appeared
during 	the 	time 	before 	the 	election 	in one 	or more 	nursing
stations 	at 	seven State hospitals. 	It 	is 	not uncommon,
however, 	that 	employees 	bring 	union 	literature 	to work during
an election campaign. 	And 	there were witnesses 	to 	CWA
literature 	in nursing 	stations 	at 	three 	State hospitals.
The 	circulation 	of 	union 	literature 	in working 	areas
clearly violates 	rules 	of 	both 	the Department 	of Mental 	Health
and 	the 	Department 	of 	Developmental 	Services. 	While 	there were
obvious violations, 	there 	is 	no evidence to suggest 	that
management 	encouraged 	this 	activity. 	Several 	unit 	supervisors
described 	the 	methods 	that 	they used 	to 	try to 	keep 	union
literature 	out 	of 	the nursing 	station. 	Even CWA witness
Joe 	Hessen 	acknowledged 	that 	after 	one 	of 	his 	complaints 	to 	the
hospital 	administration, 	CAPT 	supporters 	"quit 	bringing 	the
stuff 	into 	the 	office 	and 	the nursing 	station."
85

Management 	had 	a 	rule 	against 	union 	literature 	in work
areas. 	Management 	attempted to 	enforce 	that 	rule. 	Evidence
that 	the 	rule was 	sometimes 	broken 	simply does 	not 	establish
interference with protected 	rights 	of 	employees 	or 	of 	CWA or
that 	the 	State 	favored CAPT.
Reduction 	of 	Bulletin 	Board 	Space
It 	should 	be 	noted 	initially that 	the 	complaint 	makes 	no
reference 	to 	the division of 	bulletin boards 	or 	to 	the
reduction 	of 	CWA's 	bulletin board 	space. 	Allegations
concerning 	the 	bulletin boards 	thus 	involve 	an Unalleged
violation. 	Unalleged 	violations 	may be 	considered where 	the
conduct 	at 	issue 	is 	intimately 	related 	to 	the 	subject 	matter 	of
the 	complaint, 	where the communicative 	acts 	are part 	of 	the
same 	course 	of 	conduct, 	where 	the Unalleged violation 	is 	fully
litigated 	and where 	the 	parties 	have 	had 	the 	opportunity to
examine 	and 	be 	cross-examined 	on 	the 	issue. 	Santa 	Clara
Unified School District 	(1979) 	PERB Decision No. 	104.
The 	reduction 	of 	CWA bulletin board 	space meets 	these
tests. 	It 	is 	closely related to CWA's 	allegations 	that 	the
State 	interfered with protected 	rights. 	The 	same 	course 	of
conduct 	is 	involved 	in the 	reduction of 	the 	space 	as with the
alleged 	violations. 	The 	issue 	of 	reduced 	bulletin board 	space
was 	litigated 	at 	length 	and 	fully briefed 	by the 	parties. 	Thus
I 	conclude 	that 	the 	nature 	of 	the 	State's 	conduct 	in 	reducing
CWA's 	bulletin 	board 	space may be 	considered 	despite 	the
86

absence 	of 	a 	specific 	allegation 	regarding 	the 	reduction 	in 	the
complaint.
CWA 	argues 	that 	its 	bulletin 	board 	space 	"was 	violated 	by
CAPT 	at 	hospital 	after 	hospital 	at 	the direction of 	or with 	the
approval 	or 	subsequent 	ratification 	by hospital 	management."
CWA 	argues 	that 	its 	contractual 	right 	to 	bulletin board 	space
was 	diminished 	unilaterally by 	the 	employer without 	any
justification.
The 	State 	and 	CAPT 	rely heavily upon 	contract 	language
which 	provides 	that 	CWA 	shall 	have 	"designated" 	bulletin 	board
space. 	The contract does 	not 	provide 	for 	"exclusive" 	bulletin
board 	space, 	the State 	argues, 	noting 	a 	history of 	shared 	space
between CWA 	and 	other 	unions. 	The 	State 	contends 	that 	the
amount 	of 	space 	given 	to 	CWA could 	not 	be 	"ascertained with 	any
degree 	of 	exactness 	to 	thereafter 	determine whether 	a
diminution 	in 	space 	occurred." 	CAPT 	attributes 	CWA's
contention 	to 	"confusion" 	by 	its 	officers 	and 	agents. 	CAPT
argues 	that 	CWA 	representatives 	believed 	that 	the 	organization
had 	"exclusive" 	bulletin board 	space which 	is 	contrary to 	the
terms 	of 	the contract.
Despite 	the efforts 	of 	the 	State 	and CAPT 	to 	put 	the best
face on 	the division of 	the bulletin boards, 	CWA's 	bulletin
board 	space was 	diminished with 	the 	explicit 	or 	tacit 	approval
of management 	at 	all hospitals 	except Napa, 	Porterville 	and
Stockton. 	CWA correctly characterizes 	the 	arguments 	of 	the
State 	and CAPT 	as 	a 	contention 	that 	because CWA had no
87
'

exclusive 	bulletin board 	space 	there 	could 	have 	been no
interference with 	its 	rights. 	It 	is 	hard 	to 	conceive how the
reduction 	in 	the vast majority of 	the 	State's 	hospitals 	of 	the
amount 	of 	space 	allocated 	to 	CWA would 	not 	have 	resulted 	in 	at
least 	"some 	harm" 	to 	employee 	and CWA 	rights 	guaranteed 	by
SEERA. 	To 	diminish 	the 	amount 	of 	space 	on which 	an
organization could 	post materials 	during 	the 	peak of 	a 	heated
campaign obviously interferes with 	its 	rights 	of 	access. 	It
seems 	implicit 	in 	the 	specific warnings 	given by Messrs. 	Moore
and 	Scott 	to 	the 	hospital 	labor 	relations 	representatives 	that
the 	State was 	aware 	of 	the dangers 	of 	reducing 	CWA's 	bulletin
board space. 	Local 	administrators, 	nevertheless, 	proceeded
with 	the 	redistribution 	of 	bulletin 	board 	space 	anyway.
The 	record 	is 	devoid of 	any 	justification by 	the 	State 	for
the 	reduction of 	CWA's 	space. 	While 	the 	State doubtless was
obligated 	to 	provide posting 	space 	for CAPT, 	there 	is 	no 	reason
why 	the 	space 	given 	to 	CAPT had 	to 	be 	taken 	from CWA. 	As
Mr. 	Moore told his 	hospital 	labor 	relations coordinators, 	CAPT
could be given 	space on 	"the wall 	next 	to 	[the CWA 	space] 	if
that 	is 	the 	only option." 	In the 	absence of 	any justification
by the 	State 	for 	its 	interference, 	the 	reduction of CWA
bulletin board 	space was 	a violation 	of 	SEERA 	sections 	3519(a)
and 	(b). 	It 	interfered not only with CWA's 	rights 	of 	access
but 	also 	the 	rights 	of 	individual 	employees 	to 	participate 	in
the 	activities 	of 	an employee organization. 	Although 	the 	State
interfered with 	protected 	rights 	by 	removing 	bulletin 	board
88

space 	from CWA, 	this 	action did not 	constitute unlawful 	support
for CAPT. 	There is, 	therefore, 	no violation of 	SEERA section
3519(d).
Statements 	by 	Supervisory Employees
CWA 	argues 	that 	statements 	made 	by 	supervisory employees 	at
six 	State 	hospitals 	were 	unlawful 	because 	they contained 	either
a promise of benefit, 	a threat, 	or 	a statement of preference
for 	one 	organization over 	the 	other. 	Each of 	these 	statements,
CWA 	argues, 	constituted 	separate violations 	of 	SEERA 	sections
3519(a) 	and/or 	(d). 	Both the State 	and CAPT 	argue that when
considered 	in 	context 	none 	of 	the 	individual 	statements
constituted 	an 	impermissible 	threat 	of 	reprisal 	or 	a 	promise 	of
benefits. 	In most 	instances, 	the State and CAPT argue, 	the
comments were mere 	statements 	of 	opinion. 	In other 	situations,
according 	to 	the 	respondents, 	the 	comments 	simply were not made.
In Rio Hondo Community College District, 	supra. 	PERB
Decision No. 	128, 	the Board concluded that 	an employer has 	the
right,
. 	. 	. 	to express its views on employment
related matters 	over which 	it 	has 	legitimate
concerns 	in order 	to 	facilitate 	full 	and
knowledgeable 	debate.
But 	the 	right 	of 	employer 	speech 	is 	not 	unlimited 	and,
. 	. 	. 	speech which constitutes a threat of
reprisal 	or 	force 	or 	promise 	of 	benefit will
be perceived 	as 	a means 	of violating 	the Act
and will, 	therefore, 	lose its
protection. . . .
In accord, 	John Swett Unified School District 	(1981) 	PERB
Decision No. 	188.
89

Under 	the National 	Labor 	Relations 	Board 	formulation of 	the
rule, 	an employer may 	lawfully offer uncoercive 	opinion 	and
make 	predictions 	based 	upon 	"objective 	fact" 	about
"demonstrably probable 	consequences 	beyond 	his 	control." 	NLRB
v. 	Gissell Packing Co. 	(1969) 	395 U.S. 	575, 	618 	[71 LRRM
2481]. 	However, 	a violation will 	be found where the speech
implies 	that 	the 	employer 	"may or 	may not 	take 	action 	solely on
his 	own 	initiative 	for 	reasons 	unrelated 	to 	economic
necessities 	and 	known only to 	him." 	Ibid.
At 	issue 	here 	are 	comments 	allegedly made 	by 	supervisory
persons at Camarillo, 	Fairview, 	Lanterman, Metropolitan, 	Napa
and 	Stockton State Hospitals. 	Initially, 	the 	allegations
regarding 	Camarillo 	and Napa must 	be dismissed. 	I 	conclude
that 	the 	statements 	as 	alleged 	by CWA simply were 	not 	made.
The 	evidence will 	not 	support 	the 	allegation 	that 	Jeanne Moon,
a 	Senior 	Psychiatric Technician 	at 	Camarillo, 	was 	threatened
with 	retaliation 	if 	she 	remained 	active 	in 	the union.24 The
evidence 	likewise 	fails 	to 	support 	the 	allegation 	that
Bea 	Bloyd, 	a 	Senior Psychiatric Technician 	at 	Napa 	State
Hospital, 	was 	promised pay 	raises 	if 	she 	and 	other 	Senior
Psychiatric 	Technicians 	were 	no 	longer 	represented 	by CWA. 25
2 4 See discussion in the 	findings 	of 	fact, 	supra,
pp. 	40-41.
2 5 See discussion in the 	findings 	of 	fact, 	supra,
pp. 	45-46.
90

I 	similarly 	reject 	the 	contention 	that 	management 	and
supervisory persons 	violated 	SEERA 	in 	any of 	the 	comments 	made
to Pattie Bartlett, 	a CWA organizer 	at Lanterman State
Hospital. 	I 	found Ms. 	Bartlett 	to be 	an engaging witness with
a disarming 	personality. 	She 	testified 	to 	a 	series 	of 	comments
that were made 	to 	her 	by management 	and 	supervisory persons. 	I
have 	no 	doubt 	that 	the 	comments were made 	exactly 	as 	described
by Ms. 	Bartlett. 	However, 	as Ms. 	Bartlett candidly
acknowledged, 	she 	had 	a 	lengthy personal 	friendship with one 	of
the management 	persons 	about whom she 	testified. 	Ms. 	Bartlett
also 	described 	her 	public 	falling 	out with CWA, 	an 	occurrence
which was 	widely 	publicized 	throughout 	the 	hospital 	system 	and
would 	have 	been 	known 	to 	all 	of 	the management 	and 	supervisory
persons who made comments 	to her. 2 6 In this 	context, 	the
comments made 	to Ms. 	Bartlett were obviously personal. 	They
did 	not 	reflect 	management 	or 	supervisory criticism of 	CWA or
criticism of 	her. 	For 	the most part, 	the comments were
friendly expressions 	of 	surprise 	that 	after 	publicly
disagreeing with CWA Ms. 	Bartlett would 	become 	a 	CWA 	activist
in the election. 	For these 	reasons, 	I 	reject the contention
that 	the comments 	made 	to Ms. 	Bartlett 	amounted 	to 	interference
with either 	her 	or 	CWA's 	protected 	rights 	or 	to 	employer
support 	of CAPT.
2 6 See discussion 	in the 	findings 	of 	fact, 	supra,
pp. 	43-45. -
91

The 	remarks 	of Richard 	Singleton, 	a 	program director 	at
Fairview State Hospital, 	also 	lack the 	earmarks 	of 	interference
or unlawful 	support. 	In 	a one-on-one conversation with CWA
steward Steven Gillan, 	Mr. 	Singleton referred 	"in a very-
general 	way" 	to 	his 	opinion 	that 	CWA probably would 	be 	beaten
in the election. 	There 	is 	no 	evidence 	that 	the 	remark was
coercive 	and 	in context 	appeared 	to 	be 	little 	other 	than 	a
statement 	of 	opinion.
Mr. 	Singleton 	then 	stated 	that 	it would be 	easier 	for
Senior 	Psychiatric 	Technicians 	to 	achieve 	parity pay with
registered 	nurses 	if 	they were management 	people. 	CWA 	asserts
that 	the 	latter 	remark was 	a 	promise of 	benefit made 	in 	an
election context. 	There was, 	of 	course, 	nothing on the ballot
about whether 	Senior 	Psychiatric 	Technicians 	would 	be 	in 	or 	out
of 	the unit. 	CWA 	links 	this 	comment 	to 	a promise of 	benefit
only through 	an 	argument 	that 	CAPT 	favored 	the 	removal 	of
Senior 	Psychiatric Technicians 	from the unit. 	The 	evidence
makes 	it 	clear 	that 	CAPT never 	asserted 	such 	a 	position 	in 	the
campaign. 	Officially, 	CAPT was neutral 	on the 	issue, 	and the
opposition 	to 	the proposal 	of 	CAPT's 	interim president,
Jay Salter, 	was widely publicized. 	There 	is 	no 	evidence,
moreover, 	that Mr. 	Singleton had 	any authority to make 	any
promises 	on behalf 	of 	the 	State 	regarding 	the 	prospective 	pay
of 	Senior Psychiatric Technicians, 	be they in or out of 	the
unit. 	In this 	context, 	Mr. 	Singleton's 	remark can be 	seen 	as
nothing 	more 	than 	another 	statement 	of 	personal 	opinion.
92

Less 	benign were the 	remarks 	of Jean Nelson, 	a unit
supervisor 	at Fairview, 	of David Campbell, 	a unit 	supervisor 	at
Lanterman, 	of Dennis Masoner, 	a unit 	supervisor 	at Metropolitan
State Hospital, 	and of Jake Myrick, 	a program director 	at
Stockton 	State Hospital.
Ms. 	Nelson 	stated on 	at 	least 	three 	occasions 	before 	small
groups 	of 	employees 	that 	"CAPT 	should win" 	the 	election. 	Had
she made 	an 	isolated comment 	to 	a 	single employee, 	one might
reasonably 	interpret 	it 	as 	a 	statement 	of 	personal 	opinion.
However, 	there 	is uncontradicted testimony that Ms. 	Nelson made
the 	remark on 	at 	least 	three occasions 	in 	front 	of 	employees.
There 	is 	no 	reason why 	she 	should 	be 	offering 	her 	personal
opinion 	on 	so 	many occasions 	unless 	it was 	intended 	to
influence voters.
Mr. 	Campbell 	told CWA steward, 	Debra Saviano, 	that 	she
should 	leave 	CWA 	and 	that 	"CAPT was 	a much 	better
organization." 	He 	also 	told 	her 	that 	CWA didn't 	do 	as 	good 	a
job 	for 	employees 	as 	CAPT would do. 	A 	similar 	comment was 	made
by Mr. 	Masoner who 	remarked 	to Michael 	Jolly upon Mr. 	Jolly's
expression of 	interest 	in CWA,
Why even do 	that? 	CAPT 	is 	going 	to win
anyway. 	Everyone 	is 	going 	to CAPT. 	CWA is
a 	lost 	cause.
Likewise, 	Mr. 	Myrick remarked to Earl Lytle that, 	"I hope they
beat 	the hell 	out 	of you," 	in 	reference 	to CAPT. 	The 	remarks
of Messrs. 	Campbell, 	Masoner 	and Myrick stepped beyond 	the
bounds 	of 	opinion. 	They plainly were 	advocacy on behalf 	of
93
I

CAPT. 	In each 	instance, 	the comments would have the natural
effect 	of 	discouraging 	an 	employee 	from engaging 	in 	protected
conduct. 	No 	justification was 	offered by the 	State 	for 	these
comments 	which were 	clearly contrary 	to 	instructions 	that 	had
been 	given 	by 	State management 	to 	hospital 	level 	supervisors
and managerial 	employees.
I 	conclude 	that 	the comments 	of 	Jean Nelson,
David 	Campbell, 	Dennis Masoner 	and 	Jake Myrick each constituted
interference 	and unlawful 	support 	and were 	a 	violation of 	SEERA
section 3519(a) and (d).27 27
2 7 I n 	a 	curious 	argument 	about 	a 	document 	that 	fails 	even
to mention CAPT, 	CWA would 	also 	find unlawful 	State 	support 	in
"an unusual commendation" 	given July 16, 	1985, 	to a Senior
Psychiatric Technician 	at 	Sonoma 	State Hospital. 	The
technician, 	Betty Dwire, 	refused 	access 	to 	a paid CWA
organizer. 	CWA characterizes Ms. 	Dwire 	as 	an 	"anti-CWA
employee."
Ms. 	Dwire, 	a member of CWA, 	testified that a paid CWA
representative 	came 	onto 	her 	unit 	during 	the weekend. 	He 	had
possession of 	a 	Sonoma 	State Hospital 	nursing 	key. 	Ms. 	Dwire
advised 	the 	representative 	that 	he 	could 	not 	enter 	the 	unit 	at
that 	time. 	She 	then sent 	a memorandum to 	her 	supervisor
explaining what 	she 	had done 	and 	asked 	to 	be 	told 	if 	her
"behavior was 	inappropriate." 	Subsequently, 	hospital
Administrator Thomas Gillans 	sent 	a memorandum to Ms. 	Dwire's
program director 	expressing 	his 	appreciation 	for 	the way
Ms. 	Dwire had 	followed hospital 	procedures.
Under 	the 	contract 	between the parties, 	CWA staff
representatives 	seeking 	access 	to 	hospital 	units 	must 	first
"identify 	themselves 	to 	the 	facility Labor 	Relations
Coordinator 	who 	will 	make 	the 	necessary 	arrangements 	for 	access
to 	employees." 	No 	arrangements 	had been made 	for 	the visit 	of
the CWA organizer. 	Under 	these circumstances 	and 	in 	light 	of
Ms. 	Dwire's 	specific 	request 	to 	be 	advised 	if 	she 	had 	acted
improperly, 	there 	is 	nothing untoward 	about 	the 	note of
appreciation given to her. 	It 	is 	hard to understand, 	in any
case, 	how 	this 	document 	— 	which 	is 	dated 	the 	day 	before 	the
close 	of 	balloting 	— 	shows 	unlawful 	support 	for 	CAPT.
94
27

Use 	of 	the Hospital Mail
CWA 	presented 	evidence 	that 	the 	State 	distributed 	CAPT 	mail
through 	the hospital mail 	systems 	at Lanterman, 	Metropolitan
and 	Sonoma 	State Hospitals. 	CWA 	argues 	that 	the 	State 	thereby
showed 	preferential 	treatment 	for CAPT, 	because 	it 	refused 	to
distribute mailings 	on 	behalf 	of 	CWA.
The 	evidence 	regarding 	the distribution of 	CAPT mail 	at
Metropolitan 	State Hospital 	was 	totally unconvincing. 	Two
witnesses 	testified 	that 	they 	saw CAPT material 	in 	State
interoffice 	envelopes 	which were 	delivered 	to 	their 	units 	with
the mail. 	Neither 	employee 	knew who 	placed 	the CAPT 	literature
in 	the 	envelopes. 	There was 	no 	indication 	that 	hospital
management 	knew of 	this 	abuse of 	the mail 	system, 	and
Johnie 	Savee, 	the mail 	room assistant 	at Metropolitan, 	was 	not
authorized 	to 	open 	interoffice 	envelopes 	and 	thus 	was 	unaware
of 	their 	contents. 	In 	the 	absence of 	any evidence 	that 	the
State knew of 	this violation of 	its 	rules, 	I 	cannot 	conclude
that 	the 	State 	preferentially distributed 	CAPT mail 	at
Metropolitan.
Similarly unpersuasive was 	the 	evidence 	concerning
distribution of 	CAPT mail 	at 	Sonoma 	State Hospital. 	CWA
witness, 	Kathie Pinotich, 	testified that 	she 	found CAPT
literature 	on 	her 	unit 	and 	it 	"appeared" 	that 	the 	literature
had 	been 	distributed 	through 	the 	hospital 	mail 	system. 	The
only evidence 	in 	support 	of 	this 	contention was 	that 	the
employees' 	unit 	addresses 	had been written 	in 	ink on 	the 	face
95

of 	the envelopes. 	Ms. 	Pinotich testified that 	the method of
writing 	numbers 	resembled 	that 	of 	hospital 	postal workers who
sometimes write unit 	addresses 	on mail 	they deliver.
Much more 	persuasive was 	the 	testimony of 	Joanne Marino,
the 	Sonoma mail 	room supervisor, 	who 	testified 	that 	she did 	not
place 	the unit 	addresses 	on 	any CAPT envelopes. 	Her 	testimony
was 	buttressed by that 	of 	Dan Sorrick, 	the CAPT 	representative
at 	Sonoma, 	who 	testified 	that 	he 	and other CAPT workers 	sorted,
addressed 	and 	delivered 	the 	mail 	after 	one 	of 	the 	hospital
executive 	secretaries 	told 	him the 	CAPT 	letters 	could 	not 	go
through 	the hospital mail 	system. 	I 	conclude 	that 	the
preponderance 	of 	the evidence 	establishes 	that 	CAPT mail 	was
not 	distributed 	through 	the mail 	system 	at 	Sonoma 	State
Hospital.
CWA makes 	a 	better 	case 	on behalf 	of 	its 	contention 	that
CAPT mail was 	distributed 	through 	the mail 	system 	at 	Lanterman
State Hospital. 	CWA argues 	that hundreds 	of CAPT 	letters were
distributed 	personally by 	hospital 	administrators 	after 	the
unit 	addresses 	had 	been determined 	by 	the 	hospital 	Labor
Relations 	Coordinator 	Nancy 	Irving. 	CWA contends 	that 	the
personal 	delivery of 	such mail 	by 	administrative 	employees
"left 	a 	much 	stronger 	state 	imprimatur 	than 	simply mail
delivery." 	CWA 	contends 	that 	unit 	members 	could 	receive 	no
other message 	but 	that 	"the 	hospital 	approved 	of 	CAPT's 	effort."
Both 	the 	State 	and CAPT 	argue 	that 	there was 	no use 	of 	the
hospital 	mail 	system. 	They 	assert 	that 	the mail was 	delivered
96
,

in 	this 	way 	in 	order 	to 	remain 	in 	compliance with 	the
prohibition 	against 	delivery 	through 	the 	mail 	system.
Moreover, 	the 	State 	and CAPT 	argue, 	CWA was 	offered 	similar
assistance with 	a 	mailing 	it 	had made 	at 	approximately the 	same
time.
The 	June 	1985 	CAPT mailing 	presented 	something 	of 	a 	dilemma
to 	administrators 	at Lanterman. 	In the past, 	employees who
received personal mail were 	invited 	to 	pick up 	that mail 	at 	the
hospital 	post 	office. 	It was 	not 	delivered 	to 	them. 	The CAPT
mailing, 	however, 	comprised hundreds of pieces. 	It was 	plain
to 	both 	Lanterman Labor 	Relations 	Coordinator 	Nancy 	Irving 	and
DDS 	Labor 	Relations 	Chief 	Gary Scott 	that 	the 	appearance 	of 	so
many employees 	would 	be 	disruptive 	to 	the 	hospital 	mail 	room.
They could not, 	as 	they had done with 	a 	similar CWA mailing,
simply place 	the 	letters 	in a CAPT mailbox. 	Ms. 	Irving 	earlier
had denied CAPT's 	request 	for 	a mailbox. 	Thus, 	the hospital
administrators 	were 	confronted with 	the 	following 	problem:
They could 	not 	deliver 	the mail 	through 	the mail 	system because
that was 	against 	a 	long-held 	hospital 	rule. 	They could 	not
place 	the mail 	in 	a 	CAPT mailbox because 	they had 	denied 	CAPT
the 	right 	to 	have 	a mailbox. 	They could not 	have employees
individually go 	to 	the mail 	room as 	is 	traditional with
personal 	mail 	because 	the 	large 	number 	of 	employees 	involved
would 	have disrupted 	the mail 	room's 	operation. 	Refusal 	to
deliver 	the mail 	at 	all, 	would have constituted different
97

treatment 	for 	CAPT 	than 	that 	afforded 	to 	CWA. 	The CWA mailing
was 	at 	least 	placed 	in 	a CWA 	receptacle.
State 	and 	hospital 	administrators 	concluded 	that 	the 	best
solution was 	to 	send 	the mail 	to 	the 	individual 	programs,
notify employees 	it was 	there, 	and permit 	them to 	pick 	it up.
This 	decentralized 	approach would 	eliminate 	confusion 	at 	the
mail 	room 	and would 	keep 	intact 	the 	prohibition 	against 	the
delivery of 	personal mail. 	CWA ultimately was 	offered 	the 	same
privilege.
The 	process 	chosen 	by 	the 	State 	did 	not 	interfere with 	any
protected 	rights 	of 	either 	CWA or 	of 	employees 	loyal 	to 	it.
Nor do 	I 	believe 	that 	the 	simple 	act 	of 	inviting 	employees 	to
pick up 	their 	mail 	in 	the 	program offices 	amounted 	to 	unlawful
support 	for CAPT. 	There 	is 	no 	evidence 	that 	employees who
chose 	to 	pick up 	the 	CAPT mail 	were 	subjected 	to 	any comments
by management 	persons 	about CAPT. 	In the 	absence 	of 	evidence
about 	any surrounding events, 	I 	do 	not 	believe 	that 	an employee
who 	is 	notified 	about 	the 	presence of union mail 	in 	an
administrative 	office 	should 	necessarily deduce 	that 	the
administrator 	therefore 	supports 	the union. 	For 	these 	reasons,
I 	do 	not 	believe 	that 	the manner 	of 	distributing 	the 	CAPT
mailing 	at 	Lanterman 	State 	Hospital 	constituted 	unlawful 	State
support 	for 	CAPT.
Unit 	Modification
CWA 	argues 	that 	by 	filing 	the 	unit 	modification 	petition
the 	State 	interfered with 	the 	protected 	rights 	of 	employees.
98

CWA 	reaches 	this 	conclusion 	as 	follows: 	A majority of 	the
unit 	18 	members were 	aware 	during 	the decertification 	campaign
that 	the 	State was 	formally 	attempting 	to 	remove 	Senior
Psychiatric 	Technicians 	from the 	bargaining unit. 	It was
widely believed 	that 	CAPT was 	aligned with 	the 	State 	on 	this
issue 	and 	that 	CAPT 	supported 	the 	unit 	modification 	petition.
A majority of 	the 	Senior 	Psychiatric 	Technicians 	wanted 	out 	of
the unit, 	because 	they believed 	that 	their 	removal 	from the
unit 	would 	increase 	the 	likelihood 	that 	they would 	receive
parity pay with Registered Nurses 	II. 	Therefore, 	the 	filing 	of
a 	unit 	modification 	petition 	had 	the 	natural 	effect 	of
influencing 	unit 	members 	to 	vote 	for 	CAPT. 	By 	influencing 	the
outcome 	of 	the election, 	the petition 	interfered with 	the
protected 	rights 	of 	employees 	to 	form, 	join 	and 	participate 	in
the 	activities 	of 	employee organizations.
The problem with CWA's 	rationale, 	as 	the State points 	out,
is 	that 	it 	is 	built 	upon conclusions which 	are not 	borne out 	by
the evidence. 	While 	it 	is 	doubtless 	true 	that many Senior
Psychiatric 	Technicians 	were 	aware 	of 	the 	unit 	modification
petition, 	it 	is 	also clear that not 	all were 	aware. 	Indeed,
several 	witnesses 	professed 	no 	knowledge 	of 	the unit
modification 	petition until 	after 	the 	election was 	completed.
This 	factor 	alone makes 	the 	impact 	of 	the unit modification
somewhat 	problematical. 	An even more 	basic defect 	in CWA's
rationale 	is 	its 	assumption 	that 	employees who wanted 	out 	of
the unit 	could vote 	for 	CAPT, 	confident 	in 	the 	belief 	that 	CAPT
99

would not 	oppose 	the unit modification. 	CAPT 	as 	an
organization 	took no 	position 	on 	the 	question 	and 	even
employees who 	interpreted 	no 	position 	as 	support 	must 	have 	been
shaken 	if 	they viewed CAPT 	interim President 	Jay 	Salter
personally 	opposing 	the 	unit 	modification 	during 	the 	videotaped
debate with 	a 	CWA 	representative.
It must be understood, 	moreover, 	that 	insofar 	as 	it was 	an
election 	issue 	the unit modification was 	but 	one of many.
Discussions 	about 	whether 	Senior 	Psychiatric 	Technicians 	should
be 	in or 	out 	of 	the unit were held 	against 	a 	backdrop of
controversy over CWA's 	internal 	problems. 	It 	seems 	highly
improbable 	that 	in 	the 	swirl 	of 	election charges 	about 	CWA's
integrity 	and 	competency, 	the 	filing 	of 	the unit 	modification
petition 	interfered with 	any 	employee's 	free 	choice.
But 	as 	the State 	and CAPT argue, 	even 	if 	it be 	assumed 	that
the 	filing 	of 	the 	unit 	modification 	petition 	had 	some 	impact
upon protected 	rights, 	the 	State 	nevertheless 	has 	demonstrated
ample business 	justification. 	From the 	beginning 	of 	collective
bargaining 	in Unit 	18, 	State managers 	have believed that 	Senior
Psychiatric 	Technicians 	are 	supervisors 	and 	should 	be 	excluded
from the unit. 	Hospital 	administrators 	have 	pressed 	the
Department 	of 	Personnel Administration 	on numerous 	occasions 	to
secure 	removal 	of 	the 	Senior 	Psychiatric 	Technicians 	from the
unit. 	The 	petition was 	filed 	on 	the 	first 	possible 	occasion
under 	PERB 	rules 	following 	the 	certification of 	CWA. 	CWA
argues 	that 	the 	State has 	established 	no more 	than 	"employer
100
'

convenience or desire" 	and not 	business 	justification. 	But 	the
record 	provides 	no 	basis 	for 	doubting 	the 	sincerity of 	the
State's 	desire 	to 	remove 	Senior 	Psychiatric 	Technicians 	from
the unit. 	The 	issue here 	is 	not whether 	the petition 	is
meritorious. 	The question here 	is whether, 	given 	a desire on
the part of 	the State to modify the unit, 	the State had 	a
business 	justification 	for 	the 	timing 	of 	its 	action. 	Clearly,
it did.
The 	State's 	business 	justification 	is 	in no way 	rebutted 	by
the 	subsequent 	decision 	by Dennis 	Batchelder 	to withdraw 	the
petition 	for 	unit modification. 	The 	evidence 	establishes
without 	contradiction 	that 	PERB 	Chief 	of 	Representation
Janet 	Caraway had 	advised 	the 	State 	of 	her 	intention 	to
challenge 	the 	ballots 	of 	all 	Senior 	Psychiatric 	Technicians
voting 	in the 	representation election. 	Ms. 	Caraway had made 	it
clear 	to Mr. 	Batchelder 	and 	other 	State 	representatives 	that
the 	challenging 	of 	the 	ballots 	would 	inevitably delay
resolution of 	the 	decertification petition. 	Because 	he
believed 	the 	resolution 	of 	the 	representation 	question was 	more
important 	than 	the 	removal 	of 	Senior 	Psychiatric 	Technicians
from the unit, 	Mr. 	Batchelder directed 	that 	the petition be
withdrawn. 	His 	action was 	reasonable under 	the 	circumstances
and 	does 	not 	undercut 	the 	State's 	rationale 	for 	filing 	the 	unit
modification when 	it 	did.
For 	these 	reasons, 	I 	conclude 	that 	the State did not
interfere with 	any protected 	rights 	of 	either 	CWA 	or 	its
supporters 	by 	filing 	the 	unit 	modification 	petition.
101

OBJECTIONS 	TO 	THE 	ELECTION
CAPT 	as 	an Employee Organization
In 	its 	objections 	to 	the election, 	CWA 	reasserted
essentially 	all 	the 	allegations 	made 	in 	its 	unfair 	practice
case. 	In addition to 	these, 	CWA asserted one 	additional
grounds 	for 	objection, 	i.e., 	that CAPT was 	not 	a bona 	fide
employee 	organization 	because 	State 	employees 	were 	neither
included 	in 	it 	nor 	participants 	in 	its management. 	This
objection was 	dismissed 	at 	the 	completion of 	CWA's
case-in-chief. 	CAPT contends 	that 	because CWA did 	not 	reassert
this 	objection 	in 	its 	brief, 	the objection has 	been waived.
CWA, 	of 	course, 	had no 	obligation to 	reassert 	the objection
after 	it was 	already dismissed. 	My purpose 	in 	raising 	the
issue 	in 	this 	proposed 	decision 	is 	simply to 	explain 	in more
detail 	the 	reasons 	that 	the motion 	to 	dismiss was 	granted.
CWA's 	rationale 	for 	contending 	that 	CAPT 	is 	not 	an 	employee
organization was 	advanced during 	a 	discussion 	of 	CAPT's 	motion
to dismiss.28 CWA makes 	two 	basic 	arguments. 	It 	contends
first 	that 	under 	the 	literal 	wording 	of 	SEERA 	section 	3513(a)
it 	is 	not 	possible 	for 	there 	to 	be 	an 	"employee organization"
other 	than 	the 	exclusive 	representative 	at 	the 	time 	a 	contract
is 	in existence. 	CWA reaches 	this 	conclusion by noting 	that 	an
employee 	organization must 	have 	as 	one 	of 	its 	primary purposes
"representing" 	employees 	in 	their 	relations with 	the 	State.
2 8 See Reporter's Transcript, 	vol. 	13, 	pp. 	3-14
102

CWA observes 	that 	only 	an 	exclusive 	representative 	can
represent 	employees 	and 	therefore 	it 	is 	literally 	impossible
for 	any other 	group 	to 	be 	an 	"employee 	organization." 	If 	this
argument were 	accepted, 	of 	course, 	there would be no 	such thing
as 	a 	decertification election. 	The 	statute evidences 	an 	intent
that 	employees 	have 	a choice 	of 	exclusive 	representative. 	The
definition 	of 	"employee 	organization" 	does 	not 	nullify employee
choice.
CWA 	next 	argues 	that 	an 	employee 	organization under 	the
definition 	in 	SEERA 	necessarily must 	permit 	participation 	in
its 	activities 	by State employees. 	CWA notes 	that 	in 	State 	of
California 	(Department 	of 	Personnel Administration) 	(1985) 	PERB
Decision No. 	525-S, 	the Board 	indicated 	that 	a 	party could make
a 	successful 	challenge 	to 	a 	decertifying 	organization's 	status
if 	it 	could 	show that 	the 	organization was 	"unlawfully
dominated 	by management 	or 	has 	managerial 	and 	confidential
employees 	in elective offices." 	That 	language, 	CWA reasons,
significantly widens 	the 	requirements 	for 	an 	organization 	to
qualify as 	an employee organization. 	CWA contends 	that CAPT,
because 	of 	its 	alleged domination by Western, 	Murch 	and
Associates, 	does 	not qualify as 	an employee organization.
CAPT 	initially demurs 	to 	this 	argument. 	Assuming 	that
everything 	alleged by CWA is 	true, 	CAPT 	responds, 	so what.
CAPT 	still 	meets 	the minimal 	requirements 	for 	qualifying 	as 	an
employee 	organization per 	State 	of 	California 	(Department 	of
Developmental Services) 	(1982) 	PERB Decision No. 	228-S.
103

If 	the matter be considered on the merits, 	however, 	CAPT
vigorously 	argues 	that 	CWA's 	assertions 	about 	outsider 	control
of CAPT 	are baseless. 	CAPT contends 	that 	the 	initial 	impetus
for 	its 	formation came not 	from Western, 	Murch 	and Associates,
but 	from psychiatric 	technicians 	employed 	in Unit 	18.
Furthermore, 	CAPT continues, 	the PERB made no change 	in its
standards 	for 	determining 	the 	qualification of 	an employee
organization 	in State of California, 	supra. 	PERB Decision
No. 	525-S. 	CAPT points 	to State of California 	(Department of
Developmental Services), 	supra, 	PERB Decision No. 	228-S as the
yardstick 	for 	measuring 	the 	status 	of 	an 	organization.
I 	agree with CAPT. 	The 	leading 	case 	in this 	area 	is 	State
of California, 	supra PERB Decision No. 	228-S, 	popularly known
as 	the Monsoor 	case 	after 	the 	last 	name 	of 	the 	charging 	party.
In Monsoor 	the 	PERB 	found 	it 	"unnecessary for 	a 	group 	of
employees 	to have 	a 	formal 	structure, 	seek exclusivity, 	or be
concerned with 	all 	aspects 	of 	the 	employment 	relationship 	in
order 	to 	constitute 	a 	statutory 	labor 	organization." 	Indeed,
the Board continued, 	a 	group of 	employees 	need have no 	formal
structure 	and 	need 	pursue 	no more 	than 	a 	single 	narrow 	area 	of
interest 	and 	still 	qualify as 	an employee organization.29
2 9 Not 	even 	the 	failure of 	an organization's 	articles 	of
incorporation 	and 	bylaws 	to mention 	representation 	as 	one 	of
its 	purposes 	can disqualify 	it 	as 	an 	"employee organization."
See, 	e.g., 	California 	School Employees Association v. 	Willits
Unified 	School 	District 	(1966) 	243 	Cal.App.2d 	776 	[52 	Cal.Rptr,
765] .
104

The 	only 	significant 	question 	is 	whether 	the 	organization 	seeks
on behalf 	of 	employees 	to deal with the employer 	on 	a matter 	of
employer-employee 	relations. 	There was 	a 	similar 	holding 	in
Oak Grove School District 	(1986) 	PERB Decision No. 	582.
Measured 	against 	this 	standard, 	CAPT qualifies 	easily 	as 	an
employee 	organization under 	SEERA. 	CAPT has 	members who 	are
employees 	of 	the State of California 	and 	its 	purpose, 	as
evidenced 	in a 	number of written communications, 	is 	"to
represent 	the 	interests 	of 	psychiatric 	technicians 	and 	related
classifications 	in 	all 	matters 	relating 	to 	negotiations 	of
wages, 	hours, 	and other terms 	and conditions 	of employment."
CAPT 	likewise 	has 	no 	problem when measured 	against 	the 	language
favored 	by CWA 	in 	State 	of 	California 	(Department 	of 	Personnel
Administration), 	supra, 	PERB Decision No. 	525-S. 	There was no
showing 	that 	CAPT 	is 	"dominated 	by management 	or 	has 	managerial
or 	confidential 	employees 	in elected offices." 	Indeed, 	there
is 	no 	showing 	that 	CAPT has 	any management 	or 	confidential
employees 	in 	its membership. 	Nor 	has 	CWA made 	a 	persuasive
case 	that CAPT 	is 	somehow the creature 	of Western, 	Murch and
Associates. 	While 	it 	is 	apparent 	that 	the consulting 	firm
served 	the 	role of midwife 	at CAPT's 	first meeting, 	the 	genesis
of 	the 	organization predates Western, 	Murch 	and Associates.
CAPT 	is 	the 	product 	of 	employee dissatisfaction with CWA which
began as 	long 	ago 	as December 	1983. 	In fact, 	a premature
decertification 	attempt was made 	in the 	fall 	of 	1984 	by a 	group
105

of unit 	18 	employees. 	This was 	long before the 	first
conversations 	between Dan Western 	and Unit 	18 	members.
CWA 	raises 	questions 	about 	the 	nature 	of 	the 	consulting
contract 	between CAPT 	and Western, 	Murch 	and Associates. 	As
CAPT correctly argues, 	the nature of 	the consulting 	contract
was 	a matter 	for 	the election campaign. 	Evidence 	introduced
during 	the 	hearing 	demonstrates 	that 	the 	subject was 	fully
aired prior to the balloting. 	In any event, 	there 	is 	nothing
inherent 	in 	the 	consulting 	contract which disqualifies 	CAPT 	as
an employee organization. 	For 	these 	reasons, 	CWA's 	objection
that 	CAPT 	is 	not 	an employee 	organization was 	dismissed.
Effect 	of 	the Violations
CWA 	has 	been 	sustained 	in 	five 	unfair 	labor 	practice
charges 	against 	the 	State. 	These 	are: 	a 	failure to 	negotiate
in 	good 	faith 	by unilaterally changing 	access 	rights 	for 	CWA
representatives 	at 	Camarillo 	and 	Napa 	State 	Hospitals 	and 	by
removing 	access 	for 	CWA 	representatives 	to 	the 	telephone 	at
Patton 	State Hospital; 	interference 	and 	unlawful 	support 	by 	the
posting 	of 	the Denise Bates 	memo 	at Metropolitan 	State
Hospital; 	interference 	by the 	reduction of 	CWA bulletin 	board
space 	in eight DMH 	and DDS hospitals; 	and 	interference 	and
unlawful 	support 	by pro-CAPT 	statements 	made 	by 	administrators
at Fairview, 	Lanterman, 	Metropolitan 	and Stockton State
Hospitals.
In cases 	involving 	objections 	to 	elections, 	the
demonstration 	of 	unlawful 	conduct 	is 	"a 	threshold 	question."
106

San Ramon Valley Unified 	School 	District 	(1979) 	PERB Decision
No. 	1ll; 	Clovis 	Unified 	School 	District 	(1984) 	PERB Decision
No. 	389. 	The PERB will 	not 	in every situation where conduct
tantamount 	to 	an unfair 	practice 	is 	demonstrated, 	order 	that
the 	election be 	rerun. 	The basic question 	is whether 	taken
collectively 	the 	various 	unlawful 	activities 	establish 	a
"probable 	impact 	on the 	employees' 	vote." 	Jefferson Elementary
School District 	(1981) 	PERB Decision No. 	164. 	It 	is
unnecessary 	that 	actual 	impact 	be 	proven. 	San Ramon Valley
Unified 	School District, 	supra, 	Clovis Unified 	School District,
supra.
The question here, 	therefore, 	is whether 	taken collectively
the 	unlawful 	conduct 	in which 	the 	State 	engaged 	had 	"a 	probable
impact upon the employees' 	vote." 	If 	this were 	a 	small 	school
district with 	several 	hundred 	employees 	in 	the 	bargaining 	unit,
the 	unfair 	practices 	which 	have 	been 	demonstrated 	by CWA might
be 	sufficient 	to 	justify 	setting 	aside 	the 	election 	and
ordering 	a 	new vote. 	But 	the employer 	here 	is 	quite
different. 	The 	7,656 	employees 	in bargaining Unit 	18 	are
employed by two 	State departments. 	Collectively, 	the
departments 	are divided 	into 	some 	85 	programs 	comprising 	some
371 	units. 	The violations which have been 	found were 	not
concentrated 	at 	any 	single 	hospital. 	There was 	no 	pervasive
system-wide 	or 	hospital-wide 	anti-CWA or 	pro-CAPT 	behavior.
For 	the most 	part, 	the violations 	occurred 	at 	low 	levels within
the 	departmental 	administration 	and were 	not 	reflective 	of 	any
107

anti-CWA conduct 	by 	the 	Department 	of 	Personnel 	Administration
or 	the Departments 	of Mental 	Health 	and Developmental 	Services.
The unilateral 	imposition of 	a 	ban on the nocturnal
distribution 	of 	literature 	at 	Camarillo 	and 	a 	24-hour 	notice
rule 	at 	Camarillo 	and Napa 	State Hospitals were 	doubtless
hindrances 	to 	CWA organizers. 	The 	removal 	of 	access 	to 	the
telephone 	at 	Patton 	for 	representational 	purposes 	probably
delayed 	the 	resolution of 	some grievances. 	But 	in each of
these 	situations, 	although 	inconvenienced 	and delayed, 	CWA
organizers 	were 	nonetheless 	able 	to 	get 	their message 	out 	to
the voters. 	The division of 	the bulletin boards 	on numerous
units 	throughout 	both 	departments 	similarly 	inconvenienced
CWA organizers. 	At 	a 	time when they had 	increasing 	amounts 	of
literature 	to 	post, 	they had 	a decreasing 	amount 	of 	space upon
which to 	post 	it. 	But 	there 	is 	substantial 	evidence 	that 	CWA
leaflets 	and 	flyers 	were 	circulated 	throughout 	the 	hospital
system. 	There was 	no 	shortage of 	CWA material. 	Numerous
witnesses 	testified 	that 	CWA was 	far 	more 	effective 	than CAPT
in circulating written materials 	to 	the voters.
Perhaps 	the most 	serious 	infraction was 	the 	posting 	of 	the
Bates 	memo 	at Metropolitan Hospital. 	By 	identifying 	the 	names
of 	CAPT 	"stewards" 	the memo 	suggested 	State 	support 	for CAPT.
After 	higher-ranking 	State 	administrators 	learned 	of 	the memo,
they directed 	that 	it 	be corrected. 	A correction was 	made 	and
circulated 	throughout 	the 	hospital. 	The memo was 	not
distributed 	in 	an 	atmosphere 	of 	pervasive 	State 	support 	for
108

CAPT. 	Although 	there 	is 	some evidence 	of 	confusion caused 	by
the memo, 	it 	cannot 	be 	said 	that 	the memo 	had 	a 	probable 	impact
upon 	how unit members 	marked 	their 	ballots.
The 	evidence 	establishes 	that 	five 	individual 	supervisors
throughout 	the 	11 	hospitals made 	improper, 	pro-CAPT 	statements
to unit members. 	These comments were made 	in violation of
specific 	instructions 	from the 	departments 	that 	supervisors
were 	not 	to 	become 	involved 	in the election debate. 	It 	is
important 	to 	note 	that 	the 	improper 	remarks were made 	to 	a 	very
small 	group 	of 	employees. 	A combined 	total 	of 	approximately
six unit members 	heard 	the 	remarks 	of Unit 	Supervisor
Jean Nelson 	at 	Fairview State Hospital. 	The 	remarks 	of
David Campbell, 	a unit 	supervisor 	at Lanterman State Hospital,
were made to two employees. 	The 	remarks 	of Dennis Masoner, 	a
unit 	supervisor 	at Metropolitan State Hospital, 	and
Jake Myrick, 	a 	program director 	at 	Stockton State Hospital,
were 	each made 	to 	lone CWA 	activists. 	Although 	the 	remarks
were 	improper, 	their 	impact was minimal.
An 	election need not 	be 	perfect 	in 	order 	to 	be valid.
Mistakes 	are made 	in any human endeavor. 	The question 	is
whether 	the mistakes 	were 	sufficient 	to 	affect 	the 	outcome.
Here, 	there was 	no pervasive 	anti-CWA campaign. 	There was 	no
pervasive 	atmosphere of 	intimidation. 	The unilateral 	changes
which occurred, 	while significant 	to 	the 	organizers 	they
affected, 	had no widespread 	impact 	throughout 	the unit. 	For
the most 	part, 	the unlawful 	practices were 	isolated 	and minimal
109

in their 	impact. 	On this 	record, 	there could be no 	basis 	for
setting 	aside 	the election 	result. 	Accordingly, 	the objections
to 	the 	election 	filed 	by CWA must 	be 	dismissed.
REMEDY
Because 	the objections 	have not 	been 	sustained, 	CWA's
request 	for 	a 	new election 	is 	not 	appropriate. 	CWA 	is 	entitled
to 	the 	ordinary 	remedies 	granted 	in unilateral 	change,
interference 	and unlawful 	support cases. 	The PERB 	in
section 3514.5(c) 	is given:
... 	the power 	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 	reimbursement 	of 	employees
with or without backpay, 	as will 	effectuate
the policies 	of 	this 	chapter.
The 	ordinary 	remedy 	in 	a 	unilateral 	change 	case 	is 	the
return to 	the 	status quo 	ante. 	Here, 	the State unilaterally
banned 	CWA organizers 	from the 	nocturnal 	distribution 	of
literature 	at 	Camarillo 	State 	Hospital 	and 	imposed 	upon 	CWA
representatives 	a 	requirement 	that 	they give 	24 	hours 	advance
notice 	prior 	to 	visiting 	the units 	at 	Camarillo 	and Napa 	State
Hospitals. 	The 	State 	also 	unilaterally 	removed 	access 	of 	CWA
representatives 	at 	Patton 	State Hospital 	to 	the usage 	of 	the
telephone 	for 	grievance 	processing 	and 	other 	representational
matters. 	The 	State must 	return to 	the prior 	practice 	in each
situation.
The 	State 	engaged 	in 	interference 	by 	the 	posting 	of 	the
Denise 	Bates memo 	at Metropolitan State Hospital, 	by the
110

reduction of 	CWA bulletin board 	space 	at 	eight 	State 	hospitals,
and 	by 	pro-CAPT 	statements 	made 	by management 	and 	supervisory
employees 	at 	Fairview, 	Lanterman, 	Metropolitan 	and 	Stockton
State Hospitals. 	The posting 	of 	the Bates memo 	and 	the
statements 	also 	amounted to unlawful 	support 	of 	CAPT. 	The
appropriate 	remedy 	for 	interference 	and unlawful 	support 	is 	a
cease 	and desist 	order 	requiring 	the 	State 	to 	post 	a 	notice
incorporating 	the 	terms 	of 	the order.
Posting 	of 	a 	notice, 	signed by an 	authorized 	agent 	of 	the
State, 	will 	provide 	employees with notice 	that 	the 	State has
acted 	in 	an unlawful manner, 	is 	being 	required 	to 	cease 	and
desist 	from this 	activity, 	and will 	comply with 	the 	order. 	It
effectuates 	the 	purposes 	of 	SEERA that 	employees 	be 	informed 	of
the 	resolution 	of 	the controversy 	and 	the 	State's 	readiness 	to
comply with 	the 	ordered 	remedy. 	Davis 	Unified 	School 	District,
et al. 	(1980) 	PERB Decision No. 	116; 	see also Placerville Union
School District 	(1978) 	PERB Decision No. 	69.
CAPT urges 	that 	CWA be 	required 	to 	pay CAPT's 	attorney 	fees
and 	other 	costs 	on 	the 	grounds 	that 	the 	charges 	brought 	by CWA
are 	frivolous 	and dilatory. 	Although many of 	CWA's 	charges
have been dismissed, 	other 	charges 	have been 	sustained. 	By no
measurement 	could 	it 	be 	said 	that 	CWA's 	contentions 	are
"without 	arguable merit." 	See Modesto 	City Schools 	and High
School 	District 	(1985) 	PERB Decision No. 	518 	and cases 	cited
therein. 	CAPT's 	request 	for 	legal 	fees 	and other 	expenses 	are
therefore 	denied.
1ll

PROPOSED 	ORDER
Upon 	the 	foregoing 	findings 	of 	fact 	and 	conclusions 	of 	law
and 	the 	entire 	record 	in 	this 	case, 	it 	is 	found 	that 	the 	State
of 	California 	(Departments 	of 	Developmental 	Services 	and Mental
Health) has violated sections 3519(a), 	(b), 	(c) 	and (d) 	of the
State Employer-Employee 	Relations 	Act. 	Pursuant 	to 	section
3514.5(c) 	of 	the Government Code, 	it hereby is ORDERED that 	the
Departments 	of Developmental 	Services 	and Mental Health, 	their
officers 	and 	representatives 	shall:
1. 	CEASE AND DESIST FROM:
A. 	Making unilateral 	changes 	in 	access 	rights 	of 	CWA
representatives 	by 	banning 	them 	from 	the 	nocturnal 	distribution
of 	literature 	at 	Camarillo 	State 	Hospital 	and 	by 	requiring 	they
give 	24 	hours 	notice prior 	to 	entering 	units 	at 	Camarillo 	and
Napa 	State Hospitals.
B. 	Making unilateral 	changes 	in 	access 	rights 	of 	CWA
by prohibiting 	representatives 	of 	the 	organization 	from using
the 	telephone 	at 	Patton 	State Hospital 	for 	grievance 	processing
and 	other 	representational 	purposes.
C. 	Interfering with 	the 	protected 	rights 	of 	employees
to 	participate 	in 	the 	activities 	of 	employee 	organizations 	and
giving 	unlawful 	support 	to 	CAPT by the 	posting 	of 	a 	list 	of
CAPT 	"stewards" 	at Metropolitan State Hospital.
D. 	Interfering with 	the 	protected 	access 	rights 	of
CWA by 	reducing 	CWA's 	bulletin 	board 	space 	at 	eight 	DMH 	and 	DDS
hospitals.
112

E. 	Interfering with 	the 	protected 	rights 	of 	employees
to 	participate 	in 	the 	activities 	of 	employee 	organizations 	and
giving 	unlawful 	support 	to 	CAPT 	through 	pro-CAPT 	statements
made 	by management 	and/or 	supervisory employees 	at 	Fairview,
Lanterman, 	Metropolitan 	and 	Stockton State Hospitals.
2. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE 	THE 	POLICIES 	OF 	THE 	STATE 	EMPLOYER-EMPLOYEE
RELATIONS ACT:
A. 	Restore to CWA, 	until 	either CWA ceases 	to be the
exclusive 	representative 	of 	Unit 	18 	or 	the 	contractual 	access
clause 	is 	changed by subsequent 	negotiation, 	access 	rights 	at
Camarillo 	and 	Napa 	State 	Hospitals 	consistent 	with Article XII,
sections 	1 	and 2, 	of CWA's 	current 	agreement with the 	State.
B. 	Restore to CWA, 	until 	either CWA ceases 	to 	be 	the
exclusive 	representative of Unit 	18 	or 	the past 	practice 	is
changed by subsequent 	negotiation, 	the 	right 	to 	use 	the
telephone 	at 	Patton 	State Hospital 	for 	grievance 	processing 	and
other 	representational 	purposes 	to 	the 	extent 	permitted 	prior
to 	the 	spring of 	1985.
C. 	Remove 	from all 	management 	bulletin boards 	at
Metropolitan State Hospital 	all 	copies 	of 	the June 4, 	1985,
memo 	by Denise 	Bates 	listing 	CAPT 	"stewards" 	and 	her 	subsequent
correction memo.
D. 	Restore to CWA, 	until 	either CWA ceases 	to 	be 	the
exclusive 	representative 	of 	Unit 	18 	or 	the 	contractual 	bulletin
board 	clause 	is 	changed 	by 	subsequent 	negotiation, 	all 	bulletin
113
'

board 	space 	removed 	from CWA during 	the 	first 	six months 	of
1985 	in 	hospitals 	operated 	by DMH 	and DDS.
E. 	Within ten 	(10) 	workdays 	of 	the 	service of 	a 	final
decision 	in this 	matter, 	post 	at 	all work 	locations 	throughout
DMH 	and DDS where 	notices 	to members 	of 	unit 	18 	are 	customarily
posted, 	copies 	of 	the Notice 	attached hereto 	as 	an Appendix.
The 	Notice must 	be 	signed 	by 	an 	authorized 	agent 	to 	the 	State,
indicating 	that 	the 	State will 	comply with 	the 	terms 	of 	this
Order. 	Such 	posting 	shall 	be maintained 	for 	a 	period 	of 	thirty
(30) 	consecutive workdays. 	Reasonable 	steps 	shall 	be 	taken to
ensure 	that 	the Notice 	is 	not 	reduced 	in 	size, 	altered, 	defaced
or 	covered 	by 	any other 	material.
F. 	Upon 	issuance of 	a 	final decision, 	make written
notification 	of 	the 	actions 	taken 	to 	comply with 	the Order 	to
the 	Sacramento 	Regional 	Director 	of 	the 	Public 	Employment
Relations 	Board 	in 	accord with 	the 	director's 	instructions.
All 	other 	allegations 	in Unfair 	Practice 	Charge
No. 	S-CE-261-S 	and 	companion complaint 	and 	the 	objections 	in
Representation Case No. 	S-OB-104-S are hereby DISMISSED. 0	30 3
3 0 As 	has 	been 	seen, 	CWA at various 	points 	in 	its 	two
briefs, 	reaches 	into the 	record 	for bits 	of 	testimony which 	it
then 	fashions 	into 	allegations 	that 	are 	nowhere 	apparent 	in 	the
complaint 	or 	underlying 	unfair 	practice 	charge. 	Perhaps 	the
most 	blatant 	of 	these 	is 	the 	contention 	that 	the 	State 	showed
unlawful 	support 	for 	CAPT 	through 	the 	promotion 	of 	CAPT
supporters 	at 	Atascadero 	and 	Lanterman 	State 	Hospitals 	during
the 	election 	campaign. 	This 	assertion was 	based 	on 	testimony
of 	Sandra 	Dunlea 	that 	three CAPT 	supporters were 	promoted 	at
114

Atascadero 	and 	the 	testimony of 	Debra 	Saviano 	that 	two 	CAPT
supporters were promoted 	at Lanterman. 	There 	is 	no 	allegation
anywhere about unlawful promotions. 	If 	there were, 	the
evidence provided 	by Ms. 	Dunlea 	and Ms. 	Saviano would be 	far
from compelling. 	There 	is 	no 	evidence 	that CAPT 	supporters 	did
not 	meet 	the 	requirements 	for 	the 	jobs 	to which 	they were
promoted. 	There 	is 	no 	evidence 	that 	qualified CWA 	applicants
were 	passed 	over 	for 	promotion during 	the 	campaign 	period. 	In
short, 	the 	fact 	that 	five CAPT 	supporters were promoted during
the 	election proves 	nothing. 	CWA's 	argument 	is 	rejected.
Pursuant 	to 	California Administrative Code, 	title 	8,
part 	III, 	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 	20 	days 	of 	service of 	this 	decision. 	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 California
Administrative Code, 	title 8, 	part III, 	section 32300. 	A
document 	is 	considered 	"filed" 	when 	actually 	received 	before
the 	close 	of 	business 	(5:00 	p.m.) 	on the 	last 	day set 	for
filing, 	". 	. 	. o r when sent by telegraph or certified or
Express 	United 	States mail, 	postmarked 	not 	later 	than 	the 	last
day 	for 	filing. 	. . . " 	See 	California 	Administrative 	Code,
title 8, 	part 	III, 	section 32135. 	Code of Civil Procedure
section 	1013 	shall 	apply. 	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
115

itself. 	See California Administrative Code, 	title 8, 	part 	III,
sections 32300, 	32305, 	and 32140.
Dated: 	October 	1, 	1986 Ronald E. 	Blubaugh
Administrative 	Law 	Judge
116