California State Employees Association (Garcia) (PERB 1014S)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
JUDY K. 	GARCIA,
Charging 	Party,
v.
CALIFORNIA 	STATE 	EMPLOYEES
ASSOCIATION,
Respondent.
Case No. 	S-CO-150-S
PERB Decision No. 	1014-S
September 21, 	1993
Appearance: 	Judy K. 	Garcia, 	on her own behalf.
Before Caffrey, 	Carlyle and Garcia, 	Members.
DECISION
CARLYLE, 	Member: 	This 	case 	is before the Public Employment
Relations 	Board 	(PERB or Board) 	on appeal 	of 	a Board agent's
dismissal 	of 	an unfair practice 	charge 	filed by Judy K. 	Garcia
(Garcia). 	The Board agent 	found the charge, 	alleging that 	the
California 	State 	Employees Association 	(CSEA) 	violated Government
Code sections 3515, 	3515.5 and 3519.5(b) 	of the Ralph C. 	Dills
Act 	(Dills Act), 	did not state a prima facie case.1
1The Dills Act 	is 	codified at Government 	Code 	section 	3512
et 	seq. 	Unless otherwise 	indicated, 	all 	statutory references
herein are 	to the Government Code. 	Section 3515 	states:
Except 	as 	otherwise 	provided by 	the
Legislature, 	state employees 	shall have the
right to form, 	join, 	and participate in the
activities 	of 	employee 	organizations 	of 	their
own choosing 	for the purpose 	of
representation on all matters 	of 	employer-
employee 	relations. 	State 	employees also
shall 	have 	the 	right 	to 	refuse 	to 	join or
participate 	in the activities 	of 	employee
organizations, 	except 	that nothing shall
preclude 	the parties 	from agreeing 	to a
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maintenance of membership provision, 	as
defined in subdivision 	(i) 	of Section 3513,
or a 	fair share 	fee provision, 	as defined in
subdivision 	(k) 	of Section 3513, 	pursuant to
a memorandum of understanding. 	In any event,
state 	employees 	shall 	have 	the 	right 	to
represent 	themselves 	individually 	in 	their
employment 	relations with the 	state.
Section 3515.5 	states:
Employee 	organizations 	shall 	have 	the 	right
to 	represent 	their members 	in their
employment 	relations with the 	state, 	except
that 	once an employee 	organization 	is
recognized as 	the 	exclusive 	representative 	of
an appropriate unit, 	the 	recognized employee
organization 	is 	the 	only organization 	that
may 	represent 	that 	unit 	in employment
relations with the 	state. 	Employee
organizations 	may 	establish 	reasonable
restrictions 	regarding who may join and may
make 	reasonable provisions 	for 	the 	dismissal
of 	individuals 	from membership. 	Nothing 	in
this 	section shall 	prohibit 	any employee 	from
appearing 	in his 	own behalf 	in his 	employment
relations 	with the 	state.
Section 3519.5 	states, 	in pertinent part:
It 	shall 	be unlawful 	for an employee
organization to:
(b) 	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.
FACTS
CSEA is 	a 	recognized employee 	organization that 	is 	the
exclusive 	representative 	for 	state 	employees 	in Bargaining Units
1, 	3, 	4, 	11, 	14, 	15, 	17, 	20 and 21. 	Garcia is an elected member
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of 	the Bargaining Unit Negotiating Committee 	(a 	job 	steward 	for
Caltrans). 	Garcia filed an unfair practice 	charge on
September 18, 	1992, 	alleging that CSEA violated sections 3519(b),
3515, 	and 3515.5 	of the Dills Act when: 	1) 	CSEA funds were
misappropriated for personal use; 	2) 	an election for District
Labor Council 	782 	was 	not 	conducted according to CSEA's 	rules 	and
regulations; 	and 3) 	Garcia was 	improperly suspended as 	job
steward.
Misappropriation 	of 	Funds
Garcia 	alleges 	that 	CSEA misappropriated 	funds 	by paying 	the
cellular phone bills 	of 	a 	CSEA official 	without 	the 	necessary
receipts being submitted. 	Further, 	it was alleged that CSEA
members 	did not 	have 	the 	opportunity 	to vote 	on 	the 	CSEA budget
and that 	CSEA failed 	to 	file 	charges 	against 	two members.
Relying on Service Employees 	International 	Union. 	Local 	99
(Kimmett) 	(1979) 	PERB Decision No. 	106, 	the Board agent
determined 	that 	the 	expenditure 	of 	union 	funds 	is 	an 	internal
matter and 	that 	internal 	union affairs 	and procedures 	are 	largely
immune 	from PERB 	administrative 	scrutiny.
PERB has 	recognized an exception 	to 	the 	general 	principle 	of
non-intervention, 	where 	the 	internal 	activities 	of 	the employee
organization have 	such an 	impact 	on the 	employees' 	relationship
with their employer as 	to give 	rise 	to 	the duty of 	fair
representation. 	However, 	the Board agent 	concluded that no such
impact 	was 	demonstrated by Garcia.
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CSEA 	Election
Garcia 	alleged 	that 	several memos 	sent 	by CSEA officers
concerning an upcoming District 	Labor Council 	(DLC) 	election,
violated CSEA's 	constitution. 	To discuss 	this matter, 	a meeting
was 	organized by CSEA to address 	the 	issues 	raised. 	However,
complaints 	continued 	to be 	raised as 	to 	the 	notification process
for the meeting and 	its 	location. 	After an election protest was
filed on 	these 	issues, 	a CSEA hearing panel 	determined that 	there
was 	insufficient 	evidence 	to 	support 	the allegations 	of 	the
election process.
The 	Board agent 	dismissed 	this 	allegation 	finding 	that 	it
was 	strictly an 	internal 	union matter and 	the 	facts 	did not
demonstrate 	a 	substantial 	impact 	on Garcia's 	relationship 	with
her 	employer.
Garcia's 	Suspension
Garcia 	contended 	that 	she 	was 	suspended 	from her 	job 	steward
position 	in 	retaliation 	for 	engaging 	in protected activity.
Garcia 	claimed 	that 	she 	lost 	her steward position 	for handing 	out
flyers 	recommending 	that members vote 	against 	ratifying 	CSEA's
proposed agreement. 	Garcia also alleged CSEA did not 	give 	her a
five-day notice before 	suspending her. 	Finally, 	Garcia 	contends
that 	CSEA also 	failed to 	give her a hearing under CSEA's 	bylaws
as 	a 	result 	of her filing an unfair practice 	charge with PERB.
The 	Board agent 	concluded 	that 	the Board has 	explicitly
recognized 	its 	statutory authority 	to 	inquire 	into 	the 	internal
activities 	of an employee 	organization when 	it 	is 	alleged that
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the 	organization has 	imposed reprisals 	on employees because 	of
their protected activities. 	(California 	State 	Employees'
Association 	(O'Connell) 	(1989) 	PERB Decision No. 	753-H.)
However, 	the Board has 	recognized that 	certain actions 	taken by a
union may be 	reasonable where 	they are motivated by 	self-
protection, 	rather than retaliation. 	The Board agent 	concluded
that 	CSEA suspended Garcia 	as 	steward 	to prevent 	further
interference by Garcia 	of 	CSEA's 	right 	to properly 	represent 	its
members. 	This 	conduct was 	concluded not 	to be unreasonable.
Garcia's 	Appeal
On appeal, 	Garcia argues 	that 	CSEA suspended her based upon
allegations 	that 	were 	never presented 	in a hearing and 	that
members 	were 	denied 	representation because 	of 	her 	suspension as
steward. 	Further, 	Garcia argues 	that 	she has been denied a
hearing 	on her 	suspension because 	she 	filed an unfair practice
charge with PERB.
DISCUSSION
Ordinarily, 	the Board will 	not 	review internal 	union matters
unless 	the activities 	involved 	in the 	charge 	"have 	a 	substantial
impact 	on 	the 	relationship of unit members 	to their employers."
(Service Employees International Union. 	Local 99 	(Kimmett).
supra. 	PERB Decision No. 	106.) 	Only those union activities 	that
have a 	substantial 	impact 	on the 	relationships 	of unit members 	to
their employers 	are 	subject 	to 	the duty of 	fair representation.
(Id. 	at p. 	8.) 	Garcia has put 	forth no facts 	to indicate that
CSEA's 	alleged activities 	in 	connection with 	telephone 	costs,
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election 	irregularities, 	and her 	suspension had a 	substantial
impact 	on her relationship with her employer. 	Therefore, 	as
CSEA's 	conduct 	is 	not 	subject 	to 	the duty of 	fair representation,
no prima 	facie violation of Dills Act 	section 3519.5(b) 	has been
established under 	that 	theory.
However, 	one 	issue 	that was not addressed in the Board
agent's 	dismissal 	letter was Garcia's 	allegation 	in her amended
complaint 	that 	she was. denied a hearing on her steward suspension
as 	a 	result 	of 	her 	filing an unfair practice 	charge with 	the
Board.
When 	the 	Board 	is 	deciding whether 	to dismiss 	an unfair
practice 	charge 	on the ground that 	it 	fails 	to state a prima
facie 	case, 	the 	factual 	allegations 	contained in the 	charge are
considered true. 	(San Juan Unified School District 	(1977) 	EERB
Decision No. 	12.2)
In a July 27, 	1992 	letter 	from CSEA Director Perry Kenny,
Garcia was 	notified 	of 	charges 	filed against 	her 	for various
activities, 	among them: 	handing out 	flyers 	contrary to CSEA's
position; 	and payment 	of money 	for 	flyers 	announcing an
unapproved DLC meeting. 	Further, 	Garcia was 	informed in the 	same
letter that 	a hearing would be held and, 	"You 	[Garcia] 	will 	be
contacted 	in 	the 	near 	future and provided 	the 	specific 	date 	and
time 	for this hearing."
2Prior to January 1, 	1978, 	PERB was known as 	the Educational
Employment 	Relations 	Board.
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In a July 29, 	1992 	letter from CSEA, 	Garcia was 	suspended
from stewardship pending 	review by a hearing panel. 	This 	was
filed 	in 	accordance 	with 	CSEA Civil 	Service 	Division 	Policy
sections 6CSD9.00 et al. 	and 6CSD3.01(c) (3)b. 	Section
6CSD3.01(b)(1) 	states:
The 	civil 	service 	division administrator 	or
his/her designee 	shall 	immediately notify 	the
civil 	service 	division director who 	shall
convene 	a 	hearing panel 	and/or may place
steward/senior 	steward/chief 	steward 	in
suspended status. 	That 	steward shall be
notified by 	the 	division 	director 	in writing
within 	five 	calendar days 	of 	receiving 	the
complaint. 	The hearing panel 	shall 	consist
of 	an appropriate 	chief 	steward and 	two
certified 	stewards 	appointed by 	the 	civil
service division director. 	Staff 	shall 	be
assigned 	to provide 	technical 	assistance.
The 	hearing panel 	shall 	investigate and
conduct 	a 	hearing 	and 	determine 	the validity
of 	the 	complaint 	or problem and 	shall 	make 	a
determination within 30 	days 	of 	receipt 	of
the complaint 	on: 	(CSD 18/87/2)
a. 	Rejection of 	the 	complaint; 	or 	(BD
142/85/5)
b. 	Decertification. 	(BD 142/85/5)
On September 1, 	1992, 	in response to CSEA's letters, 	Garcia
wrote 	back 	to 	CSEA complaining 	of 	her 	suspension and 	confusion as
to 	the 	reasons 	for her suspension. 	Garcia 	stated that 	a hearing
had not 	been held 	concerning 	the 	charges 	and 	concluded:
If 	I 	do not 	hear 	from you by Friday,
September 4, 	1992 	regarding my reinstatement,
I will 	pursue 	the 	legal 	recourses 	available
to me.
On September 18, 	1992, 	Garcia 	filed the 	instant unfair
practice 	charge with 	PERB.
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On October 30, 	1992 	in a memo to Garcia regarding her
suspension as 	a 	steward, 	CSEA Civil 	Service Division Director
Perry 	Kenny wrote:
It 	is my understanding 	that you have 	taken
the 	course 	of 	action you 	spoke of 	in your
September 1, 	1992 	letter. 	It would be
inappropriate 	for me 	to make 	any response 	at
this 	time pending your Unfair Labor Practice
charge 	decision by 	PERB.
Notwithstanding a party's 	failure 	to 	allege 	facts 	sufficient
to 	show a 	substantial 	impact 	on 	the 	employment 	relationship and
thus a duty of 	fair representation, 	if 	the 	factual 	allegations
would support 	a 	finding under Dills Act 	section 3519.5(b) 	of
retaliation, 	discrimination, 	or interference by an employee
organization, 	the Board has 	the 	statutory authority to 	inquire
into 	the 	internal 	activities 	of 	the 	employee 	organization.
(California State Employees' 	Association 	(O'Connell). 	supra. 	PERB
Decision No. 	753-H.3)
As 	to the 	issue 	of 	"protected activity," 	section 3515.5
clearly permits 	and protects 	conduct 	such as 	filing an unfair
practice 	charge.
Further, 	section 3514.5 provides, 	in relevant part:
(a) 	Any employee, 	employee organization, 	or
employer shall 	have 	the 	right 	to 	file an
unfair 	practice 	charge 	. . . .
3In 0'Connell. 	the Board, 	in determining whether the
allegations 	constituted a violation 	of 	the 	Higher 	Educational
Employer-Employee Relations Act 	section 3571.l(b), 	analyzed the
limitations of Service Employees 	International Union, 	Local 	99
(Kimmett). 	supra. 	In Kimmett. 	the Board addressed section
3543.6(b) 	of 	the Educational 	Employment Relations Act. 	These two
sections 	contained language 	identical 	to 	section 3519.5(b) 	of 	the
Dills Act.
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Garcia 	informed 	CSEA that 	she 	would 	look 	into 	another 	course
of 	action 	if 	CSEA did not 	respond 	to her 	letter 	concerning her
suspension. 	CSEA's October 30 	letter indicates 	its awareness
that Garcia 	chose 	to 	file 	an unfair 	labor practice 	charge 	with
PERB and 	that 	it 	would not 	hold a hearing 	on Garcia's 	claim until
her unfair practice 	charge was 	resolved by 	the 	Board.
Accordingly, 	we 	find that Garcia has 	stated a prima 	facie
violation of Dills Act 	section 3519.5(b) 	by alleging 	that 	CSEA
retaliated against 	her by 	refusing 	to 	grant 	a hearing 	on her
suspension 	in 	response 	to 	filing 	the unfair 	labor practice with
the Board.
ORDER
Based on the reasons 	set 	forth above, 	the Board REVERSES 	the
Board agent's 	dismissal 	of 	the 	charge 	and REMANDS 	the 	case 	to 	the
general 	counsel 	for 	issuance 	of 	a 	complaint 	consistent 	with 	this
decision.
Members 	Caffrey and Garcia 	joined 	in this 	Decision.
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